UC-NRLF 


$B    EbT    71 


7 


The  Case  of  the  People 

■    against  KO-W-y  •- 

The  Lawyers  and  the  Courts 


Interviews  with  an 

Outdoor  Philosopher 

Reported  by  Frank  Cramer 


Shakespeare  :    The  first  thing  we  do,  let's  kill  all  the  lawyers. 

—II  Henry  VI,  Act  IV,  sc.  2. 


DeWITT  &  SNELLINQ 


eOOKSELLERS 

TWO  STQRE3"-g2:o  fourteenth'  sr. 


Published  by 

FRANK   CRAMER 

Palo  Alto,  California 

1915 


< 


Copyright,  1915 

by 
Frank  Cramer 


^  A^^ 


PREFACE 

IF  THE  WORDS  of  my  desert  Philosopher  fail  to  produce 
effect,  read  the  admissions  of  a  great  lawyer  and 
statesman,  once  a  secretary  of  state  and  now  a  United 
States  senator.  In  a  careful  address  before  the  Ameri- 
can Bar  Association  in  October  1914  Elihu  Root  summed 
up  the  feelings  of  the  people  toward  lawyers  and  courts, 
sought  to  minimize  the  more  violent  opinions,  and  then 
acknowledged  as  true  nearly  every  serious  charge  that 
has  been  made  against  American  judicial  methods. 

He  said  that  it  is  difficult  to  induce  even  the  bar  asso- 
ciations to  assist  in  the  improvement  of  legal  procedure; 
that  the  laws  are  crude  and  slovenly,  and  that  lawyers 
probably  make  up  a  majority  of  every  legislative  body  in 
the  United  States ;  that  there  has  been  and  is  now  a 
steady  drift  toward  more  complicated  and  technical  ju- 
dicial procedure;  that  the  simplest  rules  are  sufficient, 
and  that  in  highly  complex  international  disputes  sim- 
pUcity  of  method  is  characteristic;  that  complexity  of 
method  tends  to  bring  about  a  denial  of  justice;  that  the 
complex  rules  of  evidence  are  merely  a  bad  habit;  and 
that  lawyers,  instead  of  seeking  simple  justice,  are  apt  to 
turn  the  search  into  a  delightful  game  of  chance  or  chess. 

The  Reporter. 


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TABLE  OF  CONTENTS 


Chapter 

^  PAGE 

I.  Hog-tight  Fences  and  Fence-running 

Lawyers 7 

IL  A  Criminal  Makes  a  Monkey  of  the  Law    .  13 

IIL  Pickpockets  and  State  Constitutions     .     .  20 

IV.     Solemn  Farces 31 

V.     Fair  Play,  Time  and  Justice 39  \/ 

VL     Constitutional  Intentions 47 

VII.     Progress    by    Evasion 53 

VIII.     Priestcraft  and  Progress 62 

IX.  Truth  Forever  on  the  Scaffold    ....  69 

X.  Medical  Science  and  Legal  Casuistry    .     .  76 

XI.     Legal   Verbosity 85 

XII.     The   Unanimous   Jury 89 

XIII.     Jury  Stories 98 

XIV.  A  Successful  Revolt  in  California    .     .     .  105 

XV.  The  Railroad  Commission  at  Work  .     .     .114 

XVI.  Commission  and  Court :  a  Contrast  .     .     .122 

XVII.  Virile  Commissions  and  Impotent  Courts   .  130 

XVIII.     The  Power  of  the  Judge I39    "^ 


The  Case  of  the  People 

AGAINST 

The  Lawyers  and  the  Courts 


I 

Hog-Tight  Fences  and  Fence-Running  Lawyers 

I  HAD  BEEN  deputed  to  interview  the  descendants  of 
sundry  great  ones  on  the  question,  ''What  is  the 
matter  with  things  in  general  ?"  My  plans  for  doing 
this  were  very  complete,  but  I  got  no  results  except  some 
filtered,  whey-Uke  ideas  from  stragglers  on  the  outskirts 
of  gentility.  All  sources  of  valuable  second-hand  thought 
were  closed  to  me  either  by  pride  or  by  the  multitude  of 
experts  already  on  the  ground.  I  was  learning  the  ama- 
teur's hard  lesson:  "From  him  that  hath  not  shall  be 
taken  even  that  which  he  thinketh  that  he  hath."  I  went 
out  into  the  desert  to  brood  upon  my  general  incapacity ; 
and  there,  where  I  was  seeking  nothing  but  emptiness  for 
the  expansion  of  my  unhappiness,  I  unwittingly  hit  upon 
a  great  thing. 

On  a  bright  and  frosty  morning,  high  in  the  desert 
mountains,  I  stopped  well  up  on  the  side  of  a  cafion  to 
rest  and  study  the  scenery.  Across  the  caiion  and  a  hun- 
dred feet  higher  than  I,  on  a  narrow  shelf  of  a  black 
clifif,  with  more  black  cliff  towering  behind  and  above 
him,  stood  an  Ass,  watching  me  intently  with  his  ears. 
He  looked  as  steady  as  if  I  had  been  the  subject  of  eter- 
nal contemplation  with  him.  I  am  sure  that  he  had  not 
for  an  instant  lost  touch  with  me  during  all  the  time  I 


•^^>**c'  ';  '     7^^   CASE   OF   THE    PEOPLE   AGAINST 

had  been  there.  I  felt  a  vague  kinship  with  him;  but 
his  mental  steadiness  became  oppressive  to  me,  and  in- 
creased my  own  tendency  to  be  fussy  about  something, 
no  matter  what.  I  crossed  over  and  climbed  the  rattling 
shale  to  a  point  near  his  pedestal ;  and  although  I  felt  a 
growing  sense  of  intellectual  disadvantage,  went  ahead, 
merely  to  save  the  shreds  of  my  self-respect. 

He  was  statuesquely  gracious,  and  I  approached  him 
with  a  few  prepared  commonplaces  such  as  I  thought 
best  suited  to  the  mind  of  a  donkey.  Out  of  this  con- 
strained effort  to  get  acquainted  there  suddenly  popped 
the  tremendous  fact  that  he  was  the  many-times  grand- 
son of  the  soothsayer's  ass.  Here  in  the  great  loneliness 
I  had  come  upon  a  direct  descendant  of  one  of  the 
earth's  Great  Ones,  and  I  was  suitably  overcome.  A 
great  flood  of  intellectual  Hght,  such  as  I  had  never  sus- 
pected myself  able  to  sustain,  came  upon  me.  Baalam's 
ass  had  recognized  the  Sword  of  the  Lord  when  her 
owner  was  fumbling  the  facts  for  money,  and  kings  and 
messengers  misunderstood.  And  here  before  me  was 
her  distant  offspring  brooding  on  the  ways  of  men.  If 
he  would  but  express  even  casuaK  opinions  about  minor 
matters  I  should  not  have  climbed  the  toe  of  this  moun- 
tain spur  in  vain.  I  even  hoped  that  since  he  was  of  a 
species  somewhat  different  from  our  own  he  might  ut- 
ter wisdom  from  a  new  angle. 

I  assumed  that  it  would  be  proper  to  broach  any  sub- 
ject to  an  ass  with  oriental  slowness  and  indirection; 
and  when  he  reached  down  to  bite  off  the  only  wad  of 
bunch-grass  in  sight  it  seemed  like  the  culmination  of 
an  hour  of  deep  thought.  But  his  mental  ways  were 
very  simple.  He  was  reluctant  to  reveal  his  personal 
tastes  and  habits,  but  yielded  to  my  solicitation.    He  said 


THE   LAWYERS   AND    THE   COURTS  9 

that  he  had  been  warming  his  tail  in  the  morning  sun 
for  two  hours.  He  acknowledged  that  the  saddle  scars 
on  his  back  were  caused  by  men  who  knew  less  about 
packing  than  he  did  himself.  His  tastes  were  simple. 
His  general  preference  was  for  bunch-grass,  the  higher 
up  and  the  farther  away  from  water  it  grew,  the  better. 
But  he  did  not  reject  delicacies.  He  had  once  eaten  up 
a  kettleful  of  boiled  prunes  while  his  master  was  not 
looking,  and  got  a  merciless  mauling  for  it;  but  that 
was  the  immemorial  fate  of  the  ass.  He  had  eaten  de- 
licious pieces  of  bacon  rind,  and  grocery  bags  smeared 
with  molasses;  and  had  devoured  much  current  litera- 
ture in  the  shape  of  magazines.  'But  he  expressed  the 
conviction  that  this  last  would  have  been  much  better 
every  way  if  it  had  been  left  in  its  original  state  of  wood 
pulp.  The  reputed  intellectual  seasoning  spoiled  it,  for 
it  was  but  hogwash. 

As  soon  as  we  had  reached  a  basis  of  intellectual 
friendliness  I  bethought  me  of  America's  greatest  moral 
problem  and  asked  him  his  opinion  of  our  lawyers. 
There  was  a  long  silence,  as  if  a  thought  were  slowly 
unwinding  itself;  but  when  speech  at  last  came  forth 
there  came  with  it  a  string  of  oriental  pearls  in  slow  and 
even  discourse.    He  said: 

'Tn  ancient  Rome  the  law  gave  a  father  life-long' 
power  over  his  son;  he  could  even  sell  him.  But  to 
mitigate  inhumanity  another  rule  provided  that  when  a 
father  had  sold  his  son  three  times  his  jurisdiction 
ceased.  This  rule  was  used  by  friendly  fathers  to  eman- 
cipate their  sons.  Another  law  forbade  a  citizen  to  own 
more  than  five  hundred  jugera  of  land.  And  then  there 
came  an  avaricious  citizen  who  pitted  the  two  laws 
against  each  other.     He  emancipated  his  son  by  selling 


10  THE   CASE   OF   THE   PEOPLE   AGAINST 

him  three  times  so  that  he,  too,  might  take  five  hundred 
jugera  and  thereby  double  the  family's  allowance.  But 
that  old  Roman  suddenly  found  that  the  moral  purpose 
of  the  nation  was  against  him.  He  lived  in  the  crude 
and  early  days;  and  his  gruff  old  fellow-citizens  not 
only  refused  to  let  him  have  the  land,  but  imposed  a 
crushing  fine  for  his  impudence.  They  did  not  see  the 
moral  advisability  of  rewarding  him  for  putting  his  nose 
through  an  unintentional  gap  in  the  legal  network. 

"But  by  all  the  rules  of  practice  that  have  for  a  gen- 
eration governed  your  greatest  American  lawyers  this 
shrewd  old  Roman  was  within  his  rights.  Both  law  and 
logic  were  on  his  side ;  he  was  technically  correct.  And 
if  this  thing  had  happened  here  in  1900  A.  D.,  he  would 
have  taken  each  step  under  the  advice  of  some  lawyer  of 
high  repute,  would  have  paid  him  a  big  fee,  would  have 
got  the  land,  and  been  hailed  as  a  Captain  of  Industry. 

"My  mind  is  somewhat  slow  and  has  a  tendency  to 
dabble  with  the  unintentional  results  of  human  activity. 
A  short  fifteen  years  ago  those  words,  'Captain  of  In- 
dustry,' were  in  everybody's  mouth,  the  sign  of  Ameri- 
can success;  and  now  the  definition  of  them  has  been 
re- written  in  the  minds  of  men  and  drags  with  it  an  odor 
of  moral  contempt.  And  your  Captain  of  Industry  and 
his  lawyer  have  brought  this  upon  themselves. 

"My  family  have  been  immemorial  observers  of  hu- 
man doings,  and  the  steady  word  has  been  passed  down 
to  me  that  there  has  never  yet  been  a  hog-tight  legal 
system.  Before  that  can  be  brought  about  the  moral 
strain  becomes  so  great  that  something  unexpected  hap- 
pens. Because  leghorn  hens  are  good  flyers  the  wire 
fences  for  them  have  to  be  very  high.  But  now  and 
then  one  of  them  learns  to  climb  the  netting  with  her 


THE   LAWYERS   AND   THE   COURTS  11 

wings  and  feet,  and  nothing  but  a  roof  of  wire  netting 
over  the  chicken  yard  will  stop  her.  The  problem  has 
become  so  serious  that  the  emphasis  slowly  shifts  from 
the  fence  to  the  flopping  hen.  The  rules  of  sound  eco- 
nomic doctrine  do  the  rest.  The  cost  of  so  much  wire 
is  out  of  all  proportion  to  the  value  of  the  hen,  and  the 
problem  is  solved  by  cutting  off  her  head.  The  sim- 
plicity of  the  solution  is  startling  to  all  the  parties  in- 
volved because  there  is  no  loss  at  all.  The  hen's  climb- 
ing tendency  while  alive  has  no  deleterious  effect  on  her 
market  value  when  she  is  dead,  and  a  less  ambitious 
hen~can  fill  her  place.  There  are  not  even  any  regrets^ 
for  the  time  of  her  own  regretting  has  gone  by. 

'The  opportunities  for  legitimate  American  enter- 
prise have  been  the  marvel  of  the  world,  but  the  great- 
est talent  of  the  nation  seemed  to  busy  itself  with  the 
processes  of  evasion.  The  Captain  of  Industry,  who 
wanted  to  get  through  the  fence,  hired  the  lawyer  to  be 
the  midwife  of  crookedness.  The  average  old  board 
fence,  rail  fence  or  brush  fence  was  good  enough  for 
all  the  cattle  except  the  breachy  steer,  and  no  kind  of 
fence  was  surely  proof  against  his  genius.  Instead  of 
feeding  he  walked  and  walked,  seeking  the  weak  places, 
and  always  found  them.  His  skill  in  opening  fences 
fairly  crawled  with  consequences,  because  he  not  only 
went  into  the  corn  himself;  he  led  all  the  other  cattle 
through,  made  them  morally  restless  and  taught  a  gen- 
eral contempt  for  fences.  Then  there  was  an  economic 
revolt ;  the  cost  of  repression  was  too  great.  And  so  it 
came  about  that  the  breachy  steer  never  served  honora- 
bly under  the  yoke,  because  he  died  young,  usually  at  the 
age  of  four  years. 

"You  have  labored  long  to  make  a  hog-tight  network 


12  THE   CASE   OF   THE    PEOPLE   AGAINST 

of  your  laws.  But  your  fence-running  lawyers,  with 
their  breachy  instincts  highly  trained,  have  made  a  tan- 
gle of  them.  The  truth  is,  all  fence-runners  are  public 
enemies ;  and  because  the  normal  defenses  against  them 
are  always  inadequate,  contempt  and  wrath  must  in  the 
end  come  to  the  rescue.  During  the  last  ten  years  you 
have  shown  some  curiosity,  and  your  attention  has  slow- 
ly shifted  from  the  fences  to  the  cattle.  There  has  been 
much  scolding  and  threatening,  the  acts  of  many  of 
your  eminent  business  men  are  recognized  as  common 
crimes;  but  so  few  of  them  are  in  jail  that  they  take  on 
the  solemn  interest  of  museum  specimens. 

"A  rush  was  made  toward  the  breachy  cattle,  and 
now  you  are  going  through  a  period  of  comic  pathos. 
The  argument  is  made  that  if  the  fence-runners  are  not 
allowed  to  break  through  into  the  corn  the  common  herd 
of  stockholders  will  starve  to  death.  There  is  the  still 
funnier  fact  that  your  lawyers  are  immune.  First  they 
are  paid  to  get  their  horns  through  the  legal  network, 
and  then  they  are  paid  to  help  keep  their  breachy  cHents 
out  of  jail." 

I  had  not  broken  into  the  Philosopher's  train  of 
thought,  but  now  I  said,  'Tt  does  seem  asinine  to  tol- 
erate a  system  under  which  the  lawyers  always  win, 
whether  heads  or  tails  come  up."  He  retorted,  "I  re- 
sent the  use  of  the  word  asinine  in  this  connection.  An 
ass  who  should  try  to  do  among  us  what  your  lawyers 
do  to  your  institutions  would  get  his  splint-bones  kicked 
out  of  his  shins."  With  that  he  moved  slowly  down  the 
mountain  to  get  a  drink.  But  he  stopped  long  enough 
at  one  of  the  kinks  in  the  zigzag  trail  to  say,  "And  the 
most  of  you  do  not  know  how  the  lawyer  does  this  to 
you,  any  more  than  the  amateur  knows  how  the  expert 
gambler  always  gets  the  money." 


THE   LAWYERS    AND   THE   COURTS  13 


II 

A  Criminal  Makes  a  Monkey  of  the  Law 

A  FTER  THE  sarcastic  reference  to  our  stupidity  I  fol- 
/\  lowed  the  donkey  down,  and  last  saw  him  soak- 
-*  *-  ing  his  lips  in  a  preliminary  way  before  taking 
the  long  postponed  drink.  It  was  that  slow  dignity, 
which  not  even  his  thirst  could  break  through,  that  op- 
pressed me  most  heavily,  even  more  than  the  blows  of  his 
argument.  The  sting  of  the  Burro's  last  remark  rankled 
and  gave  rise  to  sudden  fits  of  desire  to  seek  further  ex- 
planations or  even  pick  a  quarrel.  But  the  facts  of  life 
had  been  thoroughly  displaced  by  daydreams,  and  I  be- 
gan to  feel  too  inefficient  to  carry  on  even  a  debate. 
One  morning  I  laid  myself  out  on  a  little  patch  of  crum- 
bling shale  that  sloped  eastward  on  a  hogback.  A  slight 
rise  of  the  ground  served  as  a  pillow,  and  I  had  selected 
my  couch  so  that  the  sun  would  warm  me  through  as 
it  rose  higher,  and  by  the  time  that  was  done  and  it  be- 
gan to  grow  hot  a  small  mountain  mahogany  would 
swing  its  soothing  shade  athwart  my  whole  body.  By 
this  forethought  I  had  expected  to  secure  permanent 
physical  comfort  for  at  least  half  a  day  without  further 
effort. 

With  great  preliminary  satisfaction  I  stretched  my- 
self out  to  receive  the  soothing  warm  rays  of  the  sun, 
and  soon  the  old  butterfly  visions  of  my  lazy  mind  were 
parading  before  my  attention.  They  came  more  and 
more  slowly  with  the  increasing  warmth  and  brought 
with  them  a   delightful  half -conscious   state,   just   pre- 


14  THE   CASE   OF   THE   PEOPLE   AGAINST 

ceding  gentle  slumber.  When  I  was  about  to  abandon 
the  last  faint  effort  to  stay  awake  enough  to  enjoy  the 
indulgence  of  a  peculiarly  attractive  day-dream,  there 
was  a  sudden  snap  of  wings  and  a  world-wakening  caw. 
Kar'r'r.  A  nutcracker  of  the  mountains  had  apparently 
from  pure  wantonness  dived  out  of  the  upper  sky  on  his 
way  to  water.  I  felt  that  nothing  but  malice  could  have 
furnished  that  tremendous  impulse;  it  must  have  some 
personal  relation  to  the  disturbing  of  my  comfort.  At 
any  rate  it  wakened  me.  It  was  no  use  to  raise  my  head 
to  see  what  particular  culprit  had  thus  violated  my  com- 
fort, for  all  nutcrackers  looked  alike  to  me ;  and  by  the 
time  I  could  lift  my  head  this  particular  one  would  be 
half  a  mile  away  in  the  depths  below. 

After  a  little  I  got  up,  stretched  the  wrinkles  out  of 
myself,  and  zigzagged  slowly  downward.  My  way  lay 
past  a  little  willow.  It  stood  alone  in  the  hot  sun,  de- 
fiant rather  than  drooping,  but  with  a  shrunken  look,  as 
if  it  had  grown  old  while  its  youth  was  still  upon  it. 
Near  it  was  Lone  Willow  Spring,  strangely  out  of  place 
on  the  hot  hillside.  There  was  only  a  little  bit  of  water, 
just  enough  to  make  the  scarcity  of  it  heart-breaking. 
The  ground  around  it,  once  wet,  was  hard  and  caked 
where  it  had  been  puddled  by  the  feet  of  thirsty  burros. 
The  tracks  were  deep  and  dry,  and  around  their  edges 
there  was  a  delicate  tracery  of  the  imprints  of  the  feet 
of  little  birds  who  had  come  there  to  drink  with  wings 
and  bills  agape. 

And  here  was  the  Talking  Jackass.  He  gave  no  sign 
of  life  except  a  feeble  swing  of  the  tail  as  a  protest 
against  a  band  of  flies ;  but  from  his  lower  lip  a  drop 
of  water  fell  at  intervals,  and  there  must  have  been  deep 
inward  brooding.     After  a  long  while  he  put  his  head 


THE   LAWYERS   AND   THE   COURTS  15 

down  and  held  his  mouth  in  the  little  saucer-like  hole 
with  its  pitiful  few  spoonfuls  of  water.  I  watched  his 
throat,  but  there  was  no  sign  of  gulping.  Slowly  he 
sucked  all  the  water  into  his  mouth,  and  after  he  had 
lifted  his  head  there  was  a  gulp,  followed  by  another 
little  one,  like  a  faint  afterthought.  Then  the  drops  fell 
slowly  from  his  lower  lip  again  while  he  waited  for 
more  to  ooze  out  of  the  dying  spring.  There  was  no 
hurry.  Time  was  so  abundant  there,  and  even  the  small- 
est results  had  to  wait  so  long  upon  it,  that  life  itself 
seemed  to  creep  but  slowly  over  its  vast  stretches.  I  sat 
on  a  rock  and  waited  until  he  took  no  further  interest 
in  the  water.  Taking  a  drink  up  there  was  a  solemn 
service.  As  soon  as  he  moved  away  into  the  shade  of  a 
cliff  I  re-opened  the  discussion. 

"Is  it  possible,"  I  said,  "to  analyze  the  situation  and 
get  hold  of  the  separate  elements  that  make  up  a  process 
in  which  the  lawyers  play  with  loaded  dice  and  the  peo- 
ple are  always  the  losers?" 

He  answered,  "The  mental  attitude  of  the  American 
people  toward  their  judicial  system  has  for  many  years 
been  a  curiosity.  Theoretically  proud  of  it,  they  have 
yet  recognized  their  inability  to  extract  a  reasonably 
good  quality  of  justice  from  its  workings.  They  will 
not  admit  that  the  nature  of  the  system  gives  rise  to  the 
infinite  variety  of  bad  results.  They  accuse  the  judges 
or  the  jury,  they  seek  to  tinker  the  details,  but  get  no- 
where. When  they  raise  a  nearly  unanimous  chorus  of 
criticism  there  is  little  or  nothing  in  the  way  of  con- 
structive suggestion.  Such  attempts  as  are  made  to  se- 
cure a  better  quality  of  justice  are  for  the  most  part  at- 
tempts to  eliminate,  to  sidetrack,  or  cripple  the  judicial 
system  in  the  interest  of  more  informal  rules  of  fair 
play." 


16  THE   CASE   OF   THE    PEOPLE   AGAINST 

In  the  hope  of  getting  more  specific  criticism  I  asked 
the  wise  old  burro  to  sketch  the  defects  of  the  system 
for  me.  He  gazed  across  the  canon,  as  if  studying  the 
complexion  of  the  porphyry  cliffs  beyond,  and  then  took 
up  his  parable.  "Consider  some  cases.  You  know  your 
lawyers  and  judges  are  forever  studying  cases  to  find 
out  what  to  do  next.  You  and  I  can  profitably  consider 
actual  experience  in  order  to  draw  out  the  reasons  for 
the  general  situation.  Practically  all  the  work  of  your 
courts  could  be  used  for  criticism.  The  number  of  cases 
that  justify  the  worst  criticisms  could  be  run  up  to  tens 
of  thousands.  They  are  not  sporadic  or  unusual.  Some 
are  typical  of  common  experience  and  some  are  what 
may  be  called  the  choice  fruit  of  the  system  when  it  does 
its  perfect  work. 

"A  San  Francisco  lawyer  in  the  prime  of  life  left  his 
wife  and  children,  went  to  Chicago  with  a  young  woman 
and  married  her;  and  within  a  few  weeks  returned  to 
San  Francisco  and  resumed  his  legal  practice.  He  was 
arrested  for  bigamy,  and  after  a  long  and  tiresome  pre- 
liminary struggle  was  brought  to  trial.  His  wife  proved 
her  claims  on  him  by  her  own  testimony  and  that  of  her 
children,  by  their  neighbors  and  by  several  physicians, 
by  the  marriage  certificate,  by  the  priest  that  married 
them  and  by  the  witnesses  to  the  ceremony.  He  calmly 
denied  that  he  ever  married  her;  and  claimed  that  it 
was  her  sister  whom  he  had  married  and  who  had  died 
before  the  trouble  began.  With  this  dream-like  defense 
he  kept  the  courts  busy  and  the  newspapers  alert  for  a 
long  while.  Very  near  the  close  of  the  long  trial  there 
was  a  postponement  of  the  case  for  two  or  three  days. 
Well  aware  that  there  was  absolutely  no  merit  in  his  de- 
fense, he  took  advantage  of  the  lull  in  the  case  and 


THE   LAWYERS   AND   THE   COURTS  17 

slipped  away  to  British  Columbia  with  the  young  wom- 
an. It  cost  several  months'  time,  about  $15,000  in 
money,  and  a  good  deal  of  effort  on  the  part  of  the  state 
of  California,  the  province  of  British  Columbia,  the  fed- 
eral government  at  Washington,  and  the  Dominion  gov- 
ernment at  Ottawa  to  get  him  back.  Fearing  that  they 
might  not  be  able  to  prove  actual  bigamous  relations 
against  him,  the  local  authorities  brought  him  to  trial  on 
a  new  issue. 

"His  lawful  wife  had  sued  him  for  maintenance; 
and  in  his  defense  he  had  sworn  that  she  was  not  his 
wife.  On  this  ground  he  was  arrested  and  tried  on  a 
charge  of  perjury.  Another  long  trial  bristling  with 
technicalities,  of  which  he  is  a  past  master,  ended  in  a 
disagreement  of  the  jury.  The  jury  was  out  for  thirty 
hours  and  voted  nine  for  conviction  and  three  for  ac- 
quittal from  start  to  finish.  He  had  had  an  opportunity 
to  see  these  three  men  while  the  jury  was  being  chosen; 
and  the  rest  of  the  jury  did  not  hesitate  to  express  the 
conviction  that  something  besides  the  evidence  had  de- 
termined the  vote  of  the  three. 

"In  order  to  have  a  still  more  perfect  ground  for 
prosecution,  if  such  a  thing  were  possible,  the  district  at- 
torney, instead  of  having  him  re-tried  on  the  old  perjury 
charge,  brought  him  to  trial  on  a  new  charge  of  having 
perjured  himself  again  at  the  perjury  trial.  There  was 
another  long,  hard  fight,  and  in  the  end  the  jury  found 
the  defendant  guilty.  The  city  had  at  least  twelve  su- 
perior judges  of  its  own  but  he  compelled  them  to  call 
in  judges  from  the  outside  to  preside  at  the  last  two 
trials.  The  presiding  judge  at  the  last  trial  sentenced 
him  to  prison  for  fourteen  years,  the  longest  sentence 
that  could  be  imposed.    Then  many  months  elapsed,  dur- 


18  THE    CASE   OF   THE    PEOPLE   AGAINST 

ing  which  he  repeatedly  appeared  before  different  su- 
perior judges  of  the  city,  the  state  Court  of  Appeals, 
the  state  Supreme  Court,  and  the  federal  courts,  with 
his  various  pleas  and  appeals.  The  great  earthquake 
destroyed  all  the  records  in  the  cases  and  as  soon  as  the 
judges  began  to  do  business  again  he  began  to  apply  to 
the  courts  for  various  kinds  of  rehef. 

"About  a  year  after  the  earthquake  he  was  still  suc- 
cessfully resisting  the  attempt  to  get  him  into  the  peni- 
tentiary. But  they  did  get  him  there.  That  is  the  only 
flaw  in  the  case.  And  even  after  he  was  committed,  he 
continued  to  file  pleas  in  the  various  courts. 

"Tens  of  thousands  of  common  cases  could  be  cited 
to  illustrate  the  various  phases  of  American  judicial  in- 
efficiency; this  case  is  remarkable  only  in  the  fact  that 
it  illustrates  so  many  of  the  possibilities  at  one  time.  It 
shows  what  one  lawyer  can  do  single-handed  to  bring 
the  law  and  the  courts  into  contempt  when  his  case  is 
one  of  coarse  and  brazen  crime,  the  proof  of  it  such  that 
a  six-year-old  child  would  know  its  significance,  his  de- 
fense absolutely  without  merit,  and  his  weapon  nothing 
but  the  network  of  technicality  that  your  judicial  meth- 
ods place  in  the  hands  of  the  criminal.  He  was  not  even 
rich;  and  had  to  conduct  most  of  his  defense  himself. 
He  showed  what  pluck,  and  intelligence  of  a  not  very 
high  order  but  shot  through  with  cunning  and  braced 
with  years  of  experience  as  a  shyster,  could  accomphsh." 

I  suggested  that  perhaps  the  judges  and  lawyers  ha,d 
lived  and  practiced  in  an  atmosphere  of  technicahty  and 
so  contributed  unnecessarily  to  the  general  fooHshness. 
But  he  replied,  "It  happened  that  the  judges  and  law- 
yers were  capable  men  who  did  their  utmost  to  serve  the 
state;    and  the  case  was  not  compUcated  by  pubHc  ex- 


THE   LAWYERS   AND   THE   COURTS  19 

citement,  partisanship  or  political  motives  of  any  sort. 
It  was  a  contest  between  a  strictly  private,  unprivileged 
citizen  without  social  or  other  public  influence  and  a 
great  state.  And  the  case  occurred,  not  in  a  new  or 
backward  state,  where  judicial  practice  might  still  have 
been  unsettled,  but  in  a  state  peculiarly  rich  in  legal  ex- 
perience on  account  of  its  rapid  development  and  the 
variety  of  its  moral,  commercial  and  political  interests. 
The  more  elaborate  cases  in  your  judicial  history,  like 
this  one,  merely  show  the  shameful  possibilities  of  civic 
humiliation." 


20  THE   CASE   OF   THE   PEOPLE   AGAINST 


III 
Pickpockets  and  State  Constitutions 

1HAD  GONE  away  to  consider  the  situation,  but  fell 
asleep  at  once  in  the  shade  of  a  crooked  little  moun- 
tain pine.  When  I  awoke  a  buzzard  was  sailing  in 
great  perfect  circles  far  up  in  the  gray  hot  sky.  There 
was  such  a  restful  certainty  about  his  movements  that  I 
could  close  my  eyes  and  time  his  return  to  a  given  point. 
Now  and  then  he  moved  farther  out  as  if  his  motion 
had  been  perturbed  by  some  distant  interest;  but  he  al- 
ways came  back.  There  was  no  rush  or  sign  of  fret- 
ting. He  seemed  in  league  with  endless  Time.  This 
was  all  very  comfortable  because  it  started  no  sudden 
impulses  to  do  anything,  and  required  no  physical  ex- 
ertion except  a  slight  motion  of  the  eyelids  and  a  little 
rolling  of  the  eyeballs.  After  a  while,  however,  those 
very  elements  of  ease  and  certainty  took  on  an  ominous 
significance.  That  buzzard  had  his  eye  on  me.  His 
large  and  sweeping  patience  took  on  the  aspect  of  a  vis- 
ible doom.  What  stood  between  me  and  the  ravenous 
activity  of  that  buzzard?  And  others  were  coming  to 
see  what  he  was  looking  at.  I  sat  up  and  they  all  went 
away. 

I  went  back,  and  found  my  friend  the  Ass  only  a  few 
rods  from  where  I  had  left  him.  His  mind  seemed  to 
have  stopped  working  as  soon  as  he  had  uttered  the  last 
word,  and  now  it  started  at  the  place  where  it  had  quit. 
"In  a  Chicago  case  of  conspiracy  seven  men  were  put 
on  trial  and  finally  found  guilty.     But  the  court  spent 


THE   LAWYERS   AND   THE   COURTS  21 

fourteen  days,  and  three  hundred  and  seventy-two  men 
were  examined  before  the  first  juryman  was  secured; 
and  it  took  eleven  weeks  and  the  examination  of  one 
thousand  nine  hundred  and  thirty-one  men  to  get  twelve 
jurymen.  The  case  cost  Chicago  about  $35,000;  and  it 
was  only  a  plain  case  of  cold-blooded  slugging.  The 
victim  was  badly  hurt  and  left  exposed  in  the  snow, 
where  he  contracted  pneumonia,  from  which  he  died 
later.  To  the  common  sense  of  the  people  the  case  was 
plain  and  easy;  but  to  the  criminal  court  it  was  an  all 
but  insoluble  problem,  and  all  because  the  rules  made  it 
so.  There  was  one  gleam  of  common  sense  in  the  fog 
of  technicality.  After  the  first  juror  had  been  secured 
the  prosecuting  attorney  declared  that  he  would  ask  the 
state  legislature  to  change  the  law  relating  to  the  selec- 
tion of  jurors.  No  matter  at  what  point  the  system  is 
touched,  it  breaks  down  under  a  real  test." 

I  called  attention  to  the  fact  that  in  this  case  pubUc 
excitement  and  partisanship  had  handicapped  the  pro- 
cesses of  the  court.  The  Donkey  solemnly  admitted  it 
and  waxed  sarcastic  over  a  system  which  at  its  best 
does  not  perform  well  the  functions  for  which  it  is  de- 
signed, and  breaks  down  every  time  any  external  strain 
is  put  upon  it. 

"But  the  two  cases  hitherto  considered  were  crim- 
inal cases,"  I  said ;  "one  in  a  far  western  state,  the  other 
in  a  great  city  where  the  elements  of  civic  danger  lie 
close  to  the  surface  and  are  easily  stirred.  They  might 
without  a  great  stretch  of  feeling  be  regarded  as  unfair 
tests;  in  the  field  of  civil  justice  it  might  be  found  that 
the  processes  work  satisfactorily." 

"Very  well,"  answered  the  long-eared  Philosopher, 
"let  us  take  the  state  of  Iowa,  where  there  are  no  big 


22  THE   CASE   OF   THE   PEOPLE   AGAINST 

cities,  where  the  population  is  mostly  native  American, 
where  the  social  and  political  sentiment  and  the  modes 
of  public  behavior  are  typically  American,  and  where 
even  the  forms  of  local  government  are  of  the  middle 
type,  blending  the  best  of  New  England  with  the  best 
of  the  forms  further  south.  And  let  us  choose  a  civil 
case,  one  that  concerned  the  whole  people  and  the  final 
decision  concerning  which  would  affect  the  hfe  of  the 
state. 

"Some  years  ago  the  liquor  amendment  to  the  Iowa 
state  constitution  passed  both  houses  of  two  successive 
legislatures,  was  submitted  to  the  people,  was  carried  by 
a  large  majority  of  the  votes  of  the  state,  was  proclaimed 
by  the  governor,  and  went  into  effect.  The  people  were 
as  patient  as  the  passing  years  while  they  carefully  met 
the  requirements  of  the  constitution  at  every  step.  But 
a  careless  clerk,  backed  by  a  judicial  system  that  gave 
more  weight  to  a  slip  of  the  pen  than  to  the  definitely 
expressed  purpose  of  a  sovereign  people,  was  stronger 
than  two  legislatures,  the  governor  and  the  state  itself. 
One  house  of  the  first  legislature  that  passed  on  the 
proposed  amendment  failed,  through  the  carelessness  of 
the  clerk,  to  spread  the  amendment  in  full  on  its  journal. 
When  a  liquor  case  under  this  amendment  was  brought 
before  the  state  supreme  court,  that  court  held  that  the 
amendment  had  not  been  passed  and  was  wholly  void. 
The  fact  that  the  legislature  had  actually  passed  on  the 
amendment  was  notorious.  In  this  case  the  state  su- 
preme court  served  no  purpose  except  to  destroy  the 
work  and  will  of  the  people.  It  crawled  among  the  dead 
leaves  and  found  a  bug,  but  never  saw  the  general  land- 
scape. 

"Listen:  if  an  ordinary  ass  should  do,  in  the  course 


THE   LAWYERS   AND   THE   COURTS  23 

of  his  asinine  duties,  anything  like  what  was  done  in 
that  case,  he  would  be  hobbled,  tied  to  a  telephone  pole 
with  a  double  rope,  and  beaten  from  his  ears  to  his  tail 
with  a  fence  stake  until  exhaustion  overcame  the  beater. 
Your  system  has  developed  in  such  a  way  that  error  is 
the  most  prominent  feature  of  court  procedure.  Error 
haunts  the  thought  from  the  filing  of  the  complaint  to 
the  uttermost  act  in  the  drama,  until  terror  of  it  hovers 
over  every  judicial  act. 

"It  does  not  matter  whether  the  question  at  issue  is 
great  or  small,  the  same  intellectual  fog  has  prevented 
the  courts  from  looking  over  the  tops  of  their  law  books 
at  real  life.  In  St.  Louis,  Missouri,  as  late  as  1914,  a 
man  who  had  already  been  tried  three  times  on  the  same 
charge  was  convicted  of  picking  another  man's  pocket, 
and  sentenced  to  two  years  in  the  penitentiary.  He  was 
granted  a  new  trial  because  one  word  was  wrong  in  the 
court's  instructions  to  the  jury.  The  instruction  defined 
larceny  as  'wrongful  or  fraudulent  stealing,  taking  or 
carrying  away.'  The  upper  court  held  that  'and'  should 
have  been  used  instead  of  'or'." 

'T  admit,"  said  I,  "that  unimportant  errors  have  been 
used  to  overthrow  the  work  of  the  trial  courts,  and  that 
this  has  made  the  work  of  those  courts  slow  and  uncer- 
tain. But  in  the  long  run  the  upper  courts  have  laid 
down  the  lines  of  safety  and  if  the  lower  courts  will  fol- 
low them  there  need  not  ordinarily  be  any  fear  of  re- 
versal. A  substantial  body  of  sound  opinion  has  come 
to  serve  as  an  anchorage." 

"Oh  yes."  The  Burro  made  another  of  those  admis- 
sions that  so  often  proved  fatal  to  my  point  of  view. 
"Sometimes  that  has  been  true;  but  even  that  accumu- 
lation of  so-called  sound  opinion  of  the  courts  of  appeal 


24  THE   CASE   OF   THE    PEOPLE   AGAINST 

has  been  upset  often  enough  by  those  courts  themselves 
to  destroy  its  value  and  to  remove  the  last  shadow  of 
certainty.  Some  years  ago  a  young  man  murdered  two 
girls  in  succession  in  a  church  in  San  Francisco.  Every 
known  device  was  used  by  skilful  lawyers  to  delay  the 
trial  and  defeat  justice.  It  took  three  years  to  try  the 
man  and  dispose  of  his  appeals  to  the  Supreme  Court 
of  CaUfornia  and  of  the  United  States.  Until  after  he 
was  hanged  there  always  seemed  some  chance  that  he 
might  escape;  and  no  one  dreamed  that  anything  had 
been  left  undone  to  save  his  wicked  neck. 

"One  of  the  ablest  judges  on  the  Coast  presided  at 
the  trial  and  gave  the  charge  to  the  jury.  He  had 
guarded  the  long  and  dangerous  process  of  the  trial  with 
the  utmost  care  against  the  possibility  of  error,  and 
there  were  no  flaws  that  the  ablest  lawyers  could  dis- 
cover. Because  this  judge's  charge  to  the  jury  had 
stood  the  fiery  test  of  state  and  federal  appeal,  other 
judges,  in  several  later  important  murder  trials,  used 
the  same  language  in  framing  their  charges  to  the  ju- 
ries. In  one  of  these  later  cases  an  appeal  was  taken 
to  the  state  Supreme  Court,  and  the  murderer  was 
granted  a  new  trial  on  the  ground  that  the  judge,  in  his 
charge  to  the  jury,  had  said  things  which  under  the  law 
he  should  not  have  said.  Several  other  murderers  who 
had  appeals  pending  were  given  new  trials,  because  in 
all  the  charges  to  the  juries  the  same  well  tested  lan- 
guage had  been  used.  Among  them  was  a  faithless 
woman  who  sent  poisoned  candy  across  the  continent 
and  killed  a  faithful  wife.  Five  years  after  the  murder 
she  had  been  convicted  twice,  but  was  still  Ungering  in 
a  cosy  corner  room  of  the  county  jail,  awaiting  sentence 
on   her   last   conviction.      Is   it   any   wonder   that   trial 


THE   LAWYERS   AND   THE   COURTS  25 

judges  are  at  a  loss  about  their  own  positions  and  han- 
dle their  cases  under  the  constant  dread  of  reversal?" 

In  the  hope  that  I  might  blunt  the  edge  of  this  illus- 
tration by  which  he  sought  to  prove  that  the  trial  courts 
are  kept  under  an  insufferable  moral  strain  and  that  I 
might  even  destroy  his  whole  argument,  I  said,  "This  is 
another  case  from  California  and  I  have  a  suspicion 
that  technicality  may  have  run  riot  out  there  and  that 
elsewhere  in  the  Union  saner  conditions  may  prevail. 
In  California  at  least  this  subject  is  no  longer  a  matter 
for  argument ;  for  an  amendment  has  been  added  to  the 
state  constitution  forbidding  the  courts  of  appeal  to  set 
aside  judgments  or  grant  new  trials  because  of  technical 
errors  unless  after  examination  of  the  whole  record  it  is 
found  that  there  has  been  an  actual  miscarriage  of 
justice." 

"You  got  closer  to  a  clear  statement  of  the  real  sit- 
uation just  then  than  you  seem  to  realize,"  softly  replied 
this  Professor  of  Procedure,  apparently  with  the  inten- 
tion of  throwing  another  hammer.  "If  you  were  run- 
ning your  birch  canoe  through  the  rapids  and  stove  a  hole 
as  big  as  your  head  in  the  bottom  of  it  on  a  sunken  rock, 
which  would  you  do  first,  bale  out  water  with  your  hat 
or  jerk  off  your  coat  and  plug  up  the  hole  with  it?  The 
amendment  to  the  California  constitution  is  like  cutting 
off  the  lower  six  inches  of  an  athlete's  trouser  legs  to 
give  him  more  liberty  of  action.  There  is  in  many  parts 
of  the  Union  and  in  the  federal  courts  a  slow  movement 
in  the  direction  toward  snipping  some  of  the  threads  of 
complexity,  but  hitherto  the  chief  value  of  these  little 
attempts  has  lain  in  the  astounding  fact  that  even  the 
smallest  changes  are  valuable,  and  that  nobody  is  hurt. 
The  chief  problem  is  not  merely  to  reduce  the  chances 


26  THE   CASE   OF   THE    PEOPLE   AGAINST 


of  reversal  but  to  cut  off  largely  the  privilege  of  appeal 
in  order  to  give  a  reasonable  degree  of  certainty  to  the 
work  of  the  trial  courts. 

*'A  man  in  Milwaukee  committed  the  crime  of  bri- 
bery. The  grand  jury  indicted  him  and  every  plea  and 
process  known  to  their  legal  system  was  invoked  to  de- 
lay the  trial  of  the  real  issue — the  guilt  or  innocence  of 
the  defendant.  By  desperate  efforts  the  district  attor- 
ney secured  a  trial  and  conviction.  An  appeal  was 
taken  to  the  state  Supreme  Court,  which  granted  a  new 
trial.  Not  only  was  the  verdict  set  aside,  but  the  court 
went  out  of  its  way  to  rebuke  the  trial  judge  for  the 
language  that  he  used  in  his  charge  to  the  jury. 

'The  language  used  by  the  judges  throughout  the 
state  and  frequently  approved  by  the  Supreme  Court  is 
as  follows :  'In  determining  the  credibility  of  witnesses 
you  may  consider  his  or  her  interest  in  the  result  of  the 
trial  in  connection  with  all  the  testimony  and  circum- 
stances surrounding  the  alleged  commission  of  the 
crime.'  The  following  is  the  language  that  the  trial 
judge  used  in  his  charge  to  the  jury  and  for  which  he 
was  rebuked  by  the  highest  court  in  the  state:  'A  wise 
rule  which  jurors  may  adopt  for  their  guidance  where 
there  is  a  conflict  of  testimony  between  witnesses,  is  to 
give  credence  to  the  testimony  of  the  witness  or  wit- 
nesses who  have  least  inducement  through  interest  or 
other  motives  to  testify  falsely.' 

"Outside  of  judicial  circles  this  variation  in  language 
cannot  even  be  classed  as  error.  The  only  crime  the 
trial  judge  committed  was  to  make  easily  understood 
what  the  law  intended  should  be  done  with  conflicting 
testimony,  and  what  every  juror  of  experience  would 
do  without  any  instructions  at  all.    If  such  a  thing  must 


THE   LAWYERS   AND   THE   COURTS  27 

be  regarded  as  an  error  it  is  only  one  more  proof  that 
the  system  is  so  intricate  that  in  all  human  probability 
error  will  be  committed  in  every  trial,  and  then  it  is  al- 
lowed to  affect  the  result  fatally.  Chronic  inefficiency 
has  taken  hold  of  your  courts,  not  because  you  are  not 
morally  strong  enough  to  deal  out  justice  vigorously 
and  promptly,  but  because  you  have  tangled  yourselves 
up  to  such  an  extent  in  the  meshes  of  method  that  the 
primitive  power  to  draw  manly  conclusions  and  produce 
results  can  no  longer  exercise  itself." 

"But  if  the  higher  courts  did  not  bridle  liberty  of 
expression  on  the  part  of  trial  judges,  where,"  I  asked, 
"would  the  general  confusion  end?" 

The  Ass  replied,  "The  trial  judge,  having  heard  the 
testimony  and  watched  the  actions  of  the  witnesses,  and 
having  kept  in  close  touch  with  the  jury,  so  that  he 
knows  just  what  difficulties  the  jury  in  each  case  has  to 
deal  with,  is  better  qualified  to  determine  what  form  the 
instructions  should  take  than  any  court  of  appeal. 

"And  it  is  not  merely  by  interfering  with  the  trial 
courts  that  the  higher  courts  lay  heavy  burdens  on  the 
community.  There  is  neither  legal  nor  moral  necessity 
for  leaving  the  constitutionality  of  a  law  in  doubt  when 
once  a  case  under  it  has  been  presented  to  the  highest 
court  in  the  state.  But  it  is  a  not  uncommon  practice 
to  decide  a  given  case  on  a  minor  technicality  and  dodge 
the  main  issue. 

"The  city  of  Los  Angeles  had  in  its  charter  a  pro- 
vision which  allowed  the  people  to  vote  an  undesirable 
official  out  of  office  at  a  special  recall  election.  In  1904 
the  people  of  one  of  the  city  wards  became  convinced 
that  their  alderman  had  betrayed  the  public  interest,  pe- 
titioned  for  an  election,  voted  him  out  of  office  and 


28  THE   CASE   OF   THE    PEOPLE   AGAINST 


elected  another  man  in  his  place.  The  ousted  council- 
man brought  mandamus  proceedings  against  the  city 
auditor,  after  the  latter  had  refused  to  draw  a  warrant 
for  his  salary  after  his  removal  from  office.  It  was  the 
first  case  that  had  been  taken  to  the  courts,  and  the  con- 
stitutionality of  the  recall  provision  was  assailed  before 
the  state  Supreme  Court.  Since  that  time  the  recall  has 
proved  a  powerful  weapon  in  the  efforts  of  the  people  to 
control  the  conduct  of  their  officials.  But  the  Supreme 
Court  calmly  ignored  that  part  of  the  appeal  which  ques- 
tioned the  validity  of  the  recall  provision,  and  declared 
the  man's  removal  from  office  illegal  because  the  city 
clerk,  in  his  certificate,  had  made  a  purely  technical  er- 
ror in  the  use  of  words.  Other  cities  and  towns  were 
greatly  interested  in  the  Los  Angeles  recall  provision 
and  would  have  adopted  it  if  it  had  been  pronounced 
constitutional.  But  this  wholesome  possibility  was 
brought  to  nought  by  the  action  of  the  court  in  leaving 
the  vital  point  undecided  and  seizing  on  a  petty  detail 
for  the  disposal  of  the  case.  When  the  fate  of  the  law 
itself  lies  in  the  lap  of  the  highest  court  even  an  ass  like 
me  would  see  to  it  that  the  question  of  constitutionality 
was  not  dodged." 

I  suggested  that  it  was  a  great  economy  of  effort  to 
base  the  decision  in  the  case  at  issue  on  a  detail  that  was 
considered  important  enough  for  the  purpose.  Why  have 
the  court  increase  its  labors  unnecessarily?  But  the  Old 
Fellow  again  sought  to  outflank  me.  He  went  on: 
"You  raise  the  whole  question  of  the  spirit  of  the  upper 
courts.  They  have  two  great  functions:  to  determine 
whether  individual  cases  have  been  tried  in  accordance 
with  the  laws  and  the  constitution — such  decisions  af- 
fect at  most  a  few  individuals;    and  to  determine  the 


THE   LAWYERS   AND   THE   COURTS  29 

constitutionality  of  the  laws  themselves — and  here  the 
interests  of  the  whole  community  are  affected.  With 
those  courts  it  is  usually  merely  a  matter  of  choice 
whether  they  will  deal  promptly  with  the  great  interests 
of  the  people  or  leave  them  hanging  in  a  doubtful  bal- 
ance." 

I  suggested  that  such  instances  are  not  so  numer- 
ous as  to  indicate  that  it  is  a  conspicuous  practice  on 
the  part  of  courts  of  last  resort  to  shy  at  decisions  con- 
cerning the  constitutionality  of  laws  when  that  question 
is  placed  definitely  before  them.  The  old  Burro  gave 
a  vicious  stamp  with  one  front  foot ;  I  could  not  be  sure 
whether  it  was  an  expression  of  anger  or  only  an  at- 
tempt to  intimidate  a  fly.  But  I  had  only  succeeded  in 
eliciting  the  destruction  of  my  own  opinion.     He  said: 

"As  if  all  things  had  been  working  together  to  prove 
you  wrong,  the  Supreme  Court  of  the  United  States 
has  just  now,  in  1914,  furnished  an  example  of  the  same 
practice.  The  State  of  Oklahoma  had  passed  a  law  for- 
bidding railroads  to  furnish  dining  or  sleeping  accom- 
modations to  anyone  except  whites.  When  the  case 
came  up  on  appeal,  the  question  of  the  constitutionality 
of  the  law  was  brought  squarely  before  the  United 
States  Supreme  Court.  This  tribunal,  instead  of  facing 
the  issue,  did  not  deal  with  it  at  all  because  there  was 
no  record  that  a  negro  had  actually  demanded  accom- 
modations and  been  refused.  The  decision  not  to  de- 
cide squarely  on  the  main  question  will  leave  the  validity 
of  the  law  hanging  in  the  air  for  years  to  come.  It  was 
only  a  question  of  procedure  that  thus  turned  a  serious 
matter  into  a  farce.  The  judges  were  apparently  inter- 
ested enough  in  the  main  question  to  inspire  a  majority 
of  the  court  to  hint    that    the    law    is    unconstitutional. 


30  THE   CASE   OF   THE    PEOPLE   AGAINST 

Wasn't  it  a  great  triumph  of  intellectual  and  moral  sense 
to  leave  the  question  undecided  because  the  record  did 
not  include  proof  that  some  one  negro  had  tried  to  get 
accommodations,  when  the  law  itself  was  proof  that  all 
the  negroes  in  Oklahoma  were  deprived  of  the  chance 
of  getting  it?" 

The  warmth  of  the  discussion  could  not  keep  off  the 
mountain  chill;  and  I  think  we  both  felt  that  he  had 
opened  a  subject  too  vast  to  be  dealt  with  in  the  night. 
I  left  him  and  crawled  into  my  sleeping-bag  to  brood 
over  the  general  unwillingness  of  an  ass  to  accept  any 
practices  as  useful  merely  because  they  were  habitual. 
I  felt  certain  that  there  would  be  a  great  tearing  of  cloth 
before  we  got  through,  for  neither  of  us  was  averse  to 
pursuing  the  subject  to  the  end. 


THE   LAWYERS   AND   THE   COURTS  31 


IV 

Solemn  Farces 

BEFORE  I  found  the  Open-Air  Philosopher  again  he 
had  drifted  several  miles  down  the  canon.  Al- 
though he  could  get  along  comfortably  by  slowly 
sucking  the  bit  of  water  out  of  his  own  tracks  at  Lone 
Willow  Spring,  he  evidently  dreamed  of  abundance,  too. 
For  now  he  was  standing  directly  across  the  trail,  half 
in  shadow  and  half  in  the  sun,  where  he  could  hear  the 
pure  mountain  water  gurgle  in  a  great  spring  out  of  the 
base  of  a  vertical  cliff.  It  played  its  way  into  the  sun 
and  lost  itself  in  the  gravel  below.  By  the  water  where 
he  stood  there  were  a  few  square  rods  of  luxuriant  life, 
a  crowded  little  oasis  of  clematis,  grapevines,  goldenrod, 
willows,  bees,  beetles,  sparrows,  a  quail.  There  was  a 
faint  suggestion  of  the  hot  moisture  of  a  swamp.  But 
a  few  feet  above  his  tail  in  a  crevice  of  the  cUff,  was  the 
desert — a  stunted,  gray  and  sleepy  sagebrush. 

"No  better  book  of  jokes  for  the  American  people 
could  be  written,"  he  said,  "than  a  collection  of  legal 
errors  on  which  appeals  and  reversals  have  been  based. 
But  even  such  intellectual  folly  could  be  tolerated  if  the 
effect  of  error  were  even-handed.  If  a  man  commits  em- 
bezzlement or  bribery,  unless  he  is  prosecuted  within  a 
given  time  the  statute  of  Hmitations  runs  against  his  act, 
and  thereafter  he  can  be  as  independent  as  those  who 
have  behaved  themselves.  But  if  a  board  of  school  trus- 
tees issues  bonds  and  anywhere  in  the  compUcated  pro- 
cess commits  a  petty,  unintentional  error,  that  error  has 


32  THE   CASE   OF   THE    PEOPLE   AGAINST 

perpetual  force  and  may  even  deprive  an  honest  investor 
of  the  money  that  he  paid  for  the  bonds.  It  is  small 
comfort  to  know  that  such  errors  would  have  absolutely 
no  effect  and  would  in  most  cases  never  be  known,  if 
there  were  not  a  special  class  of  men  whose  efforts  were 
given  over  to  nosing  about  for  them. 

"In  the  old  marriage  banns  an  opportunity  was  given 
to  an  objector  to  the  marriage  to  'forbid  the  banns  or 
forever  hold  his  peace.'  The  objector  had  his  oppor- 
tunity but  by  neglecting  it  'he  lost  it.  Only  in  your 
courts  is  opportunity  perpetual,  and  even  there  only  for 
the  criminal  and  such  as  have  some  motive  for  blocking 
public  intention.  In  a  little  town  there  was  an  ordinance 
against  gambling  with  slot  machines.  Some  cigar  deal- 
ers were  arrested  under  its  provisions  and  one  of  them 
brought  to  trial.  The  prosecution  was  effective  and  the 
trial  was  more  than  half  over  when  the  defense,  seeing 
that  the  day  was  going  against  them,  suddenly  sprang 
on  the  court  the  statement  that  the  complaint  was  defec- 
tive. ■  On  that  ground  the  case  was  thrown  out  of  court 
and  the  whole  subject  was  dropped.  The  men  who  had 
collected  the  evidence  were  honorable  and  busy  men  and 
declined  to  trifle  with  the  business  any  longer  and  mere- 
ly make  themselves  the  laughing-stock  of  petty  criminals 
by  trying  to  bring  them  to  justice.  The  law-abiding 
citizen  loses  his  opportunity  by  neglecting  it.  Why 
should  not  the  man  who  is  probably  a  criminal  be  com- 
pelled to  raise  all  questions  about  the  form  of  the  com- 
plaint before  the  trial  begins?  It  would  deprive  him  of 
no  rights  and  would  prevent  him  from  mocking  at  the 
solemn  processes  of  the  court." 

''Do  you  really  believe,"  said  I,  "that  such  instances 
are  common  enough  to  spoil  the  quality  of  justice?    And 


THE   LAWYERS   AND   THE   COURTS  33 

if  the  point  was  insignificant,  why  did  not  the  trial  jus- 
tice rebuke  the  trick  and  go  on  with  the  case?" 

"He  did  not  dare  to  go  on  with  it  because  he  was 
afraid  of  his  own  shadow.  He  rightly  calculated  that 
the  chances  were  against  the  triumph  of  common  sense; 
he  concluded  that  it  would  be  better  to  start  over  again 
than  take  a  chance  with  loaded  dice.  Such  cases  have 
been  so  common  that  they  destroy  one  of  the  most  es- 
sential elements  of  justice — certainty.  Can  there  be  any 
intellectual  or  moral  defense  for  such  a  performance  as 
this  ?  A  man  in  San  Francisco  committed  petty  larceny, 
was  tried,  found  guilty,  and  sentenced  to  six  months  in 
the  county  jail.  After  he  had  served  two  months  of  his 
sentence  someone  found  out  that  in  writing  out  the  com- 
mitment the  clerk  had  left  blank  the  space  intended  for 
the  words  'six  months  in  the  county  jail' ;  and  for  that 
reason  the  superior  court  released  him  on  habeas  corpus 
proceedings.  It  did  not  matter  that  he  had  committed 
the  crime  and  a  competent  court  had  sentenced  him  to 
six  months  in  jail.  If  a  farmer  had  sold  a  wagon-load 
of  potatoes,  but  decided  that  he  could  not  collect  pay 
for  them  because  he  had  forgotten  to  write  the  amount 
down  formally  in  his  account  book,  he  would  be  taken 
before  the  insanity  commissioners  for  inspection;  but 
judges,  alas !  they  can  do  things  to  each  other." 

It  was  sultry  between  the  vertical  canon  walls,  and 
the  silence  was  so  perfect  that  we  heard  the  echo  of  a 
little  bird's  musical  whistle.  I  was  very  drowsy,  and  he 
ceased  talking;  but  a  cool  draught  came  from  some- 
where out  of  the  sky.  After  he  had  stretched  his  lower 
jaw  he  opened  a  new  attack. 

**Once  upon  a  time,"  he  said,  "one  boy  told  another 
there  was  a  cat  around  the  corner  of  the  barn.     Proof 


34  THE   CASE   OF   THE   PEOPLE   AGAINST 


was  demanded.  He  laboriously  cut  off  some  hair  with 
a  dull  knife  and  brought  it  round  the  corner.  When  he 
was  made  to  understand  that  hair  was  no  proof  of  a 
live  cat,  he  brought  in  turn  the  cat's  whiskers,  one  ear, 
several  toe  nails,  the  end  of  the  tail,  and  at  last  a  few 
drops  of  warm  blood.  But  these  were  all  merely  frag- 
mentary proofs  and  each  could  be  accounted  for  with- 
out a  living  cat.  The  mewing  of  the  animal  was  only 
inferential  evidence,  and  it  could  easily  have  been  imi- 
tated by  a  skilful  boy.  Suddenly  the  one  who  had 
brought  the  proofs  told  the  other  boy  to  come  around  the 
corner  of  the  barn  and  look.  But  he  would  not  go  and 
always  insisted  that  the  other  had  not  proved  what  he 
said." 

"Your  parable,"  I  said,  "is  more  ridiculous  than  fun- 
ny; what  is  its  appUcation?  It  is  an  earthly  story,  all 
right ;  but  what  is  its  heavenly  meaning  ?" 

"Yes,"  he  said,  "it  is  more  ridiculous  than  funny; 
but  not  so  bad  as  solemn  court  records.  In  San  Fran- 
cisco in  1904  a  far-reaching  conspiracy  to  stuff  the  bal- 
lot-boxes at  the  primary  election  was  uncovered.  The 
evidence  of  the  crime  was  indisputable.  The  names  of 
the  perpetrators,  the  time,  and  other  data  had  been  care- 
fully taken  down  in  writing  and  the  evidence  was  all 
corroborated.  This  treason  against  American  citizen- 
ship was  so  bold  and  undeniable  that  it  seemed  to  be 
only  a  matter  of  form  to  send  the  guilty  to  the  peniten- 
tiary. Two  were  indicted  for  ballot  stuffing,  one  for 
perjury  and  one  for  subornation  of  perjury,  and  the 
courts  were  asked  to  oust  the  board  of  election  commis- 
sioners for  malfeasance  in  office.  Every  available  de- 
vice was  used  to  delay  and  upset  the  cases.  When  a 
trial  was  finally  secured  for  the  first  man  the  whole  of 


THE   LAWYERS   AND   THE   COURTS  35 

the  first  three  days  was  spent  in  an  attempt  to  prove  that 
a  primary  election  had  been  held.  At  the  end  of  a  year 
or  more  two  of  the  poor  wretches  were  sent  to  prison, 
but  all  of  the  politicians  involved  went  scot  free.  In  a 
parable  such  performances  look  ridiculous.  In  a  gang 
of  boys  they  would  be  hooted  and  the  perpetrators 
kicked  to  improve  their  intelligence." 

"It  seems  incredible,"  said  I,  "that  such  conditions  in 
the  most  important  institution  of  the  people  would  be 
tolerated  at  all ;  there  is  a  lingering  mistrust  in  my  mind 
concerning  the  cogency  of  the  cases  you  cite." 

He  replied,  "Your  moral  depression  would  be  even 
greater  if  you  attended  the  courts  and  saw  how  these 
same  elements  work  themselves  out,  first  in  one  way  and 
then  in  another,  often  causing  slight  delays  and  pro- 
ducing offensive  situations,  requiring  tremendous  energy 
to  produce  small  results  or  none  at  all.  Probably  your 
greatest  shock  would  come  from  the  observation  that 
practically  all  of  the  common  methods  of  despatching 
business  are  carefully  avoided  in  the  interest  of  a  theo- 
retical perfection  that  coughs  and  chokes  in  the  fumes 
of  its  own  by-products." 

"I  cannot  credit  the  evidence  from  sheer  inability  to 
believe  that  a  highly  civilized  people  would  exhibit  such 
asinine  stupidity.  Why  is  not  the  whole  system  over- 
turned ?    Anarchy  would  not  be  much  worse." 

I  was  leaning  back  against  the  sheer  wall  of  the  cliff 
with  my  hands  behind  me,  and  the  ass  was  facing  me. 
He  still  wore  an  old  shoe  on  his  right  hind  foot,  the  relic 
of  a  long  mountain  trip.  He  wheeled  around,  using  his 
front  feet  as  a  pivot.  I  had  suddenly  sensed  the  mean- 
ing of  my  own  remark  but  had  no  time  to  correct  it. 
Out  of  a  horrified  mental  and  physical  confusion  I  saved 


36  THE   CASE   OF   THE    PEOPLE   AGAINST 

myself  by  the  primeval  instinct  to  leap  from  danger. 
His  hind  foot  shot  out  like  a  flash  of  light  and  hit  the 
rock  wall  two  inches  above  where  my  knee  had  been. 
There  was  a  brief  smell  of  hell-fire,  and  the  shape  of  the 
shoe  was  printed  on  the  wall  in  pulverized  rock.  I 
groaned,  even  at  the  imaginary  pain,  and  inwardly  bade 
farewell  to  any  further  interviews  with  the  Talking 
Jackass.  But  he  did  not  even  look  angry.  He  only 
seemed  to  be  overwhelmed  with  disgust  at  having  missed 
his  mark.  After  a  careful  look  at  the  footprint  on  the 
rock  he  went  on  to  answer  my  last  question,  as  if  all 
scores  had  been  squared. 

"It  is  one  of  the  common  features  of  human  history 
that  systems  of  thought  and  practice  are  elaborated  un- 
til their  usefulness  is  utterly  destroyed;  their  grip  on 
the  public  mind  is  very  great,  but  performance  becomes 
stupid  and  results  ridiculous.  The  public  mind  sits  in 
one  place  so  long  that  its  legs  go  to  sleep;  and  then  it 
cannot  move  at  all.  But  in  order  that  our  personal  rela- 
tions with  each  other  may  remain  pleasant,  remember 
that  the  qualities  of  mind  pertaining  to  a  desert  ass  are 
altogether  unsuitable  for  the  making  of  figures  of  speech 
that  reflect  on  the  intelligence  of  your  lawyers. 

"The  incredibility  of  what  I  have  said  about  techni- 
cality in  your  courts  troubles  only  those  who  have  not 
examined  the  subject.  As  if  a  humorous  fate  could  not 
refrain  from  making  judicial  processes  utterly  farcical, 
it  dealt  the  final  blow  in  the  famous  Ruef  case.  The  his- 
tory of  the  grafting  in  city  business  during  the  period 
of  his  ascendancy  and  the  bitter  pursuit  and  his  final 
downfall,  is  filled  with  facts  that  are  astounding,  pa- 
thetic, incredible.  He  manipulated  election  after  elec- 
tion, traded  the  votes  of  his  supervisors  as  if  they  were 


THE   LAWYERS   AND   THE   COURTS  37 

oxen,  and  did  crooked  business  with  the  financial  and 
social  leaders  of  the  city.  During  the  long  and  dramatic 
pursuit  there  were  confessions  by  the  supervisors,  and 
one  by  Ruef  himself.  There  were  many  trials  and  jury 
disagreements  and  acquittals.  The  elite  among  the 
crooks  escaped.  Supervisor  Coffey  was  convicted  on  a 
charge  of  taking  a  bribe  that  was  given  him  in  Ruef's 
behalf  by  Supervisor  Gallagher.  It  was  on  Gallagher's 
testimony  that  Coffey  was  convicted.  In  all  states  the 
testimony  of  an  accomplice  is  to  be  regarded  with  dis- 
trust by  the  jury,  but  in  California  the  code  itself  pro- 
vides that  a  defendant  shall  not  be  convicted  on  the  tes- 
timony of  an  accomplice  unless  it  is  corroborated  by 
other  testimony.  Ruef  was  convicted  of  giving  a  bribe 
to  Supervisor  Furey.  The  bribe  was  given  to  him  by 
Supervisors  Wilson  and  Gallagher  in  Ruef's  behalf. 

"Now  what  did  the  upper  courts  do  with  the  situa- 
tion? The  Appellate  Court  upheld  the  conviction  of 
Coffey  on  the  ground  that  Gallagher  was  not  his  accom- 
plice in  the  taking  a  bribe;  Gallagher  had  committed 
a  different  crime — he  had  given  a  bribe.  Ruef's  con- 
viction was  similarly  upheld.  But  when  Coffey's  case 
came  before  the  Supreme  Court  of  the  state,  that  court 
ruled  that  Gallagher  had  been  an  accomplice  of  Cof- 
fey, and  granted  the  latter  a  new  trial.  All  this  would 
have  been  humorous  enough,  because  there  was  no  ques- 
tion that  the  testimony  was  true  and  that  Coffey  was 
guilty,  and  in  three-fourths  of  the  states  of  the  Union 
the  conviction  would  have  held  good  in  the  upper  courts. 
It  failed  in  California  merely  because  California  copied 
the  code  of  New  York  when  it  adopted  a  code.  But  in 
the  Ruef  case  the  situation  became  farcical.  Under  the 
ruling  of  the  Supreme  Court,  Ruef  would  without  ques- 


38  THE    CASE   OF   THE    PEOPLE   AGAINST 

tion  have  been  given  a  new  trial.  But  by  the  sheerest 
formaUty  which  had  not  the  sHghtest  bearing  on  either 
the  evidence  or  the  law,  he  lost  his  final  opportunity  in 
the  upper  court.  He  went  to  the  penitentiary  under  his 
fourteen-year  sentence;  his  career  of  wrong-doing  and 
all  his  hopes  were  cut  off,  not  by  the  stern  judgment  of 
a  trial  court,  but  by  an  almost  unbelievable  freak  of  tech- 
nicality. After  all  the  farce  and  the  tragedy,  this  was 
a  ludicrous  anti-climax.  A  system  that  can  by  any  pos- 
sibihty  produce  such  results  has  lost  its  grip  on  the 
prime  object  of  its  existence.  It  fails  in  every  essential 
element  that  goes  to  make  up  practical  justice." 

We  agreed  to  adjourn  and  meet  next  day  somewhere 
in  Woodpecker  Cafion. 


THE   LAWYERS    AND    THE   COURTS  39 


V 
Fair  Play,  Time  and  Justice 

IN  a  general  discussion  there  is  always  room  for  ad- 
verse comment.  The  trend  of  thought  can  be  made 
to  ramble  and  dodge  obstructions.  But  the  Donkey's 
constant  appeal  to  pertinent  specific  cases  left  little 
room  for  speculative  treatment  of  the  subject;  and  I 
proposed  to  encourage  a  more  general  discussion  of  the 
subject. 

When  I  had  gone  up  Woodpecker  Canon  only  a  short 
distance  the  canon  suddenly  filled  with  a  sound  like  the 
shout  of  a  great  army.  The  rocky  walls  were  quarreling 
with  the  bray  of  a  donkey,  and  the  noise  grew  more 
voluminous  until  the  canon  seemed  unable  to  hold  it  any 
longer.  I  wandered  on  and  searched  the  upper  reaches 
incessantly,  screening  my  eyes  against  the  hot  light.  At 
last  I  saw  a  gray  face  move  far  up  on  the  western  side. 
A  cool  wind  blew  down  from  the  Yellow  Buttes  at  the 
head  of  the  canon,  and  I  climbed  up  to  the  seat  of  ju- 
dicial philosophy.  I  sat  down  on  a  little  shelf  and  wait- 
ed, Indian  fashion,  for  the  time  of  speech;  but  there 
was  not  even  a  sign  of  an  inclination  to  begin.  I  went 
far  back  for  a  running  start  and  said,  "With  all  the  ed- 
dies and  cross  currents  and  stagnant  pools  and  quick- 
sands that  show  themselves  in  practice,  the  American 
conception  of  justice  or  fair  play  is  essentially  sound. 
There  is  prompt  and  sufficient  resentment  at  every  spec- 
tacle of  injustice;  the  average  man's  judgment  would 
be  a  safe  conclusion  in  any  given  case." 


40  THE   CASE   OF   THE    PEOPLE   AGAINST 

"It  seems  to  be  a  steady  characteristic  of  our  inter- 
views," said  the  Donkey,  "that  you  should  invariably 
touch  the  garment  of  the  matter  in  issue  without  grasp- 
ing the  essential  fact.  It  is  a  pathetic  feature  of  the  sit- 
uation that  the  American  people  do  have  so  fine  a  sense 
of  justice.  But  justice  may  be  merely  the  group  of  ab- 
stract principles  by  which  actions  are  measured  as  right 
or  wrong ;  or  it  may  be  the  personal  or  community  spirit 
of  fair  play;  but  in  its  governmental  relations  justice  is 
the  giving  to  every  one  what  he  deserves.  The  first  of 
these  is  altogether  theoretical;  the  second  is  the  free 
play  of  the  people's  spirit,  and  while  it  enforces  fair  play 
outside  the  law,  gives  tone  to  conduct  and  moral  satis- 
faction to  those  who  cherish  a  sense  of  justice.  But  the 
justice  with  which  we  are  concerned  is  the  forcible,  gov- 
ernmental giving  to  each  man  what  he  deserves.  And 
here  the  results  are  in  many  ways  an  almost  constant 
violation  of  the  people's  own  sense  of  what  is  right." 

"If  we  admit,"  I  said,  "that  what  you  say  is  true  is 
it  not  another  example,  on  a  large  scale,  of  preaching 
one  thing  and  practicing  another?  How  is  it  possible 
that  an  admittedly  right-minded  community  should  bun- 
gle its  most  important  work  so  sadly?" 

A  strange  light  came  into  his  eyes ;  he  looked  at  me 
and  then  at  the  high  mountains  as  if  seeking  to  draw 
thence  the  wisdom  to  deal  adequately  with  the  question. 
He  slowly  shifted  each  leg  in  turn,  swung  his  tail  a  lit- 
tle, and  draped  his  ears  at  a  new  angle,  as  if  trying  to 
rid  himself  of  every  little  physical  strain.  When  he  be- 
gan to  speak  his  speech  was  even  slower  than  usual,  as 
if  he  were  uttering  things  that  could  not  be  retracted. 

"Time  is  of  the  very  essence  of  justice.  Abstract  prin- 
ciples by  themselves  are  of  no  more  avail  than  the  day- 


THE   LAWYERS    AND   THE   COURTS  41 

dreams  of  a  shiftless  loafer.  Nor  is  sound  moral  judg- 
ment of  itself  competent  to  enforce  right  in  the  world. 
In  fact,  when  it  is  left  altogether  to  its  own  resources, 
the  correctness  of  its  decisions  is  usually  in  inverse  ratio 
to  its  ability  to  affect  in  any  way  the  things  it  passes  up- 
on. It  is  a  truism  that  the  best  moral  judgment  on  past 
events  is  not  reached  until  there  is  a  long  historical  per- 
spective through  which  to  gaze  at  them.  You  pass  a 
sounder  judgment  on  the  acts  of  Nero  than  his  contem- 
poraries could  do;  for  one  reason,  because  your  moral 
views  are  less  weighted  down  with  social  and  political 
institutions  founded  on  force  and  privilege.  But  your 
views  of  the  acts  of  Nero  have  no  effect  on  the  facts 
themselves.  Time  has  helped  to  form  a  better  judgment, 
but  meanwhile  the  victims  perished,  not  even  being 
aware  of  your  fine  moral  views. 

"If  each  man  is  to  get  what  he  deserves  he  must  get 
it  when  he  deserves  it.  Time  constantly  shifts  the  point 
of  view,  corrupts  the  facts,  belittles  them.  The  injured 
party  suffers  instead  of  the  one  who  is  in  the  wrong.  In 
case  of  crime  the  community  loses  its  interest  with  the 
lapse  of  time,  not  because  the  act  becomes  less  a  crime, 
but  because  other  interests  intervene.  The  most  ancient 
as  well  as  recent  practice  recognizes  the  fact  that  justice 
turns  pale  with  time.  The  statutes  of  limitation,  al- 
though they  differ  widely  in  different  jurisdictions,  all 
carry  the  same  intent.  The  actual  time  limit  is  not 
founded  on  any  inherent  necessity ;  there  is  nothing  sci- 
entific about  it.  The  sole  purpose  is  to  set  a  'reasonable' 
limit  to  the  time  within  which  the  matter  may  be  pur- 
sued. If  a  man  commits  a  public  wrong  he  must  be 
prosecuted  within  a  given  time  or  the  crime  is  outlawed 
and  it  can  no  longer  be  punished.    This  limitation  is 


42  THE    CASE   OF   THE    PEOPLE   AGAINST 

fixed  because  time  is  an  essential  element  in  the  forcible 
application  of  moral  principles. 

"If  a  carpenter  works  on  a  house  and  the  contractor 
fails  to  pay  him,  he  can  file  a  lien  on  the  property,  and 
so  hold  the  owner  as  well  as  the  contractor  responsible. 
But  if  he  does  not  file  the  lien  within  a  given  time  after 
the  work  is  done  he  loses  the  privilege  altogether.  Why 
should  the  privilege  be  restricted  to  sixty  days  ?  Merely 
to  give  him  the  opportunity;  if  he  neglects  it  he  loses 
it.  The  rights  of  others  begin  to  intervene  with  the 
lapse  of  time ;  and  his  little  right  would  be  constantly  in- 
truding upon  new  rights  and  new  conditions  that  time  is 
constantly  injecting. 

"In  early  Rome  the  legal  processes  for  the  transfer 
of  property  became  in  time  so  excessively  ceremonious 
and  cumbersome  that  there  never  could  be  any  certainty 
that  mistakes  had  been  avoided.  Consequently  along- 
side the  ancient  elaborate  methods  of  transfer  others 
sprang  up  out  of  insignificance  into  permanent  im- 
portance, and  gradually  displaced  the  modes  of  transfer 
that  had  become  dangerous  and  uncertain.  One  of  the 
devices  resorted  to  was  the  rule  that  if  a  man  believed 
that  he  was  getting  property  lawfully  and  it  had  been  ac- 
tually transferred  to  him,  no  matter  how  defective  the 
title  was,  merely  occupying  the  property  two  years  made 
the  title  perfect.  Macaulay  sums  up  the  historical  rec- 
ord with  the  statement  that  *The  laws  of  all  nations 
have  wisely  established  a  time  of  Hmitation,  after  which 
titles,  however  illegitimate  in  their  origin,  cannot  be 
questioned.'  In  other  words,  time  can  heal  an  imper- 
fection that  it  did  not  cause.  This  is  valid  merely  be- 
cause time  also  removes  the  possibility  of  making  the 
correction.    There  had  to  be  an  automatic  safeguard  to 


THE   LAWYERS   AND   THE   COURTS  43 

avoid  anarchy.  No  matter  from  what  angle  the  matter 
is  considered,  the  law  itself  provides  many  proofs  that 
time  is  an  essential  element  of  justice  and  that  the  future 
shall  not  be  permanently  saddled  with  the  burden  of  acts 
long  done.  If  they  are  not  rectified  with  reasonable 
promptness  time  itself  is  given  the  power  to  draw  the 
sting.  There  is  a  practically  universal  recognition  of  the 
fact  that  time  destroys  both  the  right  and  the  value  of 
postponed  proceedings." 

I  had  certainly  got  what  I  had  asked  for,  an  analysis 
without  concrete  examples.  I  injected  a  suggestion. 
"Since  the  law  itself  gives  full  recognition  to  the  doc- 
trine you  have  urged,  what  more  can  be  said  or  done? 
Even  under  ideal  conditions  accuracy  and  a  high  quality 
of  justice  seem  to  require  time  rather  than  swiftness  of 
procedure.  Perhaps  the  actual  conditions  under  which 
governmental  justice  is  administered  are  as  reasonable 
as  should  be  expected." 

''The  best  answer  to  your  suggestion,"  said  the  Don- 
key, "is  not  further  speculative  declarations  but  the  judg- 
ment of  your  nation.  It  is  one  of  the  recognized  and 
hopeless  facts  of  your  civilization  that  your  judicial  pro- 
cesses are  cumbersome  and  ineffective,  that  the  criminal 
is  unduly  protected,  the  community  almost  hopelessly 
handicapped  in  its  efforts  to  punish,  and  that  the  innocent 
party  in  a  civil  suit  suffers  nearly  if  not  fully  as  much  as 
the  one  who  committed  the  wrong.  Your  last  two  presi- 
dents damned  in  almost  violent  language  the  farcical 
complexity  and  delays  of  procedure.  President  Taft 
came  near  pronouncing  a  curse  on  the  criminal  processes 
of  the  federal  courts ;  and  these  are  recognized  as  vastly 
superior  to  most  of  the  state  courts. 

"In  1905  President  Roosevelt  said  to  Congress:    *In 


44  THE    CASE   OF   THE    PEOPLE   AGAINST 

my  last  message  I  asked  the  attention  of  Congress  to  the 
urgent  need  of  action  to  make  our  criminal  laws  more 
effective ;  and  I  most  earnestly  request  that  you  may  pay 
heed  to  the  report  of  the  Attorney-General  on  this  sub- 
ject. Centuries  ago  it  was  especially  needful  to  throw 
every  safeguard  around  the  accused.  The  danger  then 
was  lest  he  be  wronged  by  the  state.     The  danger  now  is 

exactly  the   reverse The  delays  of  the  criminal 

law  no  less  than  of  the  civil,  now  amount  to  a  very  great 
evil.'  In  the  same  message  he  said,  'The  history  of  the 
cases  litigated  under  the  present  commerce  act  shows 
that  its  efficacy  has  been  to  a  great  extent  destroyed  by 
the  weapon  of  delay,  almost  the  most  formidable  weapon 
in  the  hands  of  those  whose  purpose  it  is  to  violate  the 
law.'  This  is  the  powerful  plea  of  the  man  charged  with 
the  enforcement  of  the  law.  Twenty-one  directors  of  the 
New  York,  New  Haven  and  Hartford  Railroad,  the  most 
powerful  financial  group  in  America,  were  charged  with 
conspiracy  to  violate  the  Sherman  anti-trust  law.  They 
filed  a  plea  in  abatement  on  the  ground  that  the  clerk  of 
the  court  who  selected  the  members  of  the  federal  grand 
jury  that  brought  the  indictments  had  his  legal  residence 
outside  of  the  judicial  district  in  which  he  is  a  court  clerk. 
When  the  matter  finally  came  up  for  argument  they 
asked  the  court  for  consent  to  change  their  plea.  They 
did  not  announce  what  the  new  plea  would  be  and  the 
court  and  lawyers  solemnly  went  on  with  the  argument 
on  the  old  plea !  The  time  has  long  passed  when  it  was 
worth  while  to  spend  energy  proving  the  pitiful  in- 
effectiveness of  your  slow  and  complicated  judicial  pro- 
cesses. Concrete  illustration,  even,  can  do  no  more  than 
merely  freshen  a  national  moral  conviction  that  has 
grown  stale. 


THE   LAWYERS   AND   THE   COURTS  45 

"If  that  is  the  state  of  the  federal  household,  what 
shall  be  said  of  the  local  courts?  In  cases  where  the 
conditions  require  prompt  judicial  action  because  of  some 
specific  time  limit,  the  court  processes  degenerate  into  an 
absolute  farce.  In  the  city  of  San  Francisco  a  man  who 
had  not  been  an  elector  in  the  city  and  county  for  the  re- 
quired five  years,  and  was  therefore  not  eligible  to  hold 
any  office,  received  a  majority  of  the  votes  for  tax-col- 
lector. The  defeated  candidate,  who  happened  to  be  the 
old  tax-collector,  refused  to  surrender  the  office  on  the 
ground  that  the  new  man  could  not  legally  hold  it.  The 
new  man  and  his  friends  organized  a  mob,  drove  out  the 
old  collector  and  took  possession.  The  old  collector  car- 
ried the  matter  into  court  and  it  decided  that  the  majority 
had  thrown  away  their  votes  on  a  man  who  was  not  eH- 
gible  for  the  office,  and  that  therefore  the  old  collector, 
who  had  the  next  largest  number  of  votes,  was  the  right- 
ful claimant. 

"Instead  of  accepting  the  decision  like  a  good  citizen 
and  surrendering  the  office,  the  man  who  held  the  office 
unlawfully  appealed  to  the  Supreme  Court.  There  the 
case  hung  fire.  After  the  illegal  occupant  had  held  the 
office  during  the  whole  term,  drawn  the  salary  and  done 
the  city's  business  as  de  facto  tax-collector,  the  Su- 
preme Court  decided  that  he  had  no  right  to  the  office. 
But  one  great  point  had  been  gained.  All  the  pharisaic 
rules  had  been  obeyed  and  a  decision  had  been  given  'in 
accordance  with  the  law.'  Its  effect  was  the  same  as  if 
the  court,  sitting  on  the  case  of  a  man  who  had  already 
been  drowned,  should  hand  down  a  decision  to  the  effect 
that  water  has  a  tendency  to  stop  the  breath." 

"But  where  is  the  fault?"  said  I.  "The  people  make 
the  laws.     The  constitution  and  the  laws  lay  down  a 


46  THE   CASE   OF   THE    PEOPLE   AGAINST 

great  variety  of  rules  and  provide  for  the  appeals,  plead- 
ings, demurrers,  continuances,  and  the  rest  of  the  endless 
list  of  processes,  and  even  specify  how  much  time  is  to 
be  allowed  for  each.  It  therefore  becomes  almost  a 
simple  arithmetical  calculation  to  determine  how  long  it 
will  take  to  get  a  case  through  the  courts.  Of  course 
there  would  be  a  wide  variation  in  time  between  the 
shortest  and  the  longest  possible  delay.  It  is  only  this 
intervening  stretch  of  time  that  can  be  fairly  charged 
against  the  habits  of  the  courts  and  lawyers.  And  even 
this  is  largely  accounted  for  by  the  relative  stubbornness 
and  pugnacity  of  the  litigants.  We  may  admit  that  the 
judicial  system  is  as  bad  as  you  say  it  is ;  but  let  us  put 
the  blame  where  it  belongs.  Can  not  the  people  have 
any  kind  of  a  judicial  system  that  they  want?" 

"Ah,"  replied  the  Donkey,  twitching  a  fly  off  his  ear, 
"'you  could  have  made  several  large  kettles  full  of  intel- 
lectual soup  out  of  the  meat  in  that  paragraph.  You 
have  a  genius  for  brevity.  But  it  is  even  more  true  in 
the  desert  than  it  is  in  North  and  South  Carolina  that 
it  is  a  long  time  between  drinks.  It  is  time  to  go  after 
one.  I  will  meet  you  tomorrow  at  the  graves  in  Sour 
Dough  Canon."  It  was  evident  when  he  said  that  he 
would  meet  me  in  Sour  Dough  he  meant  that  I  would 
find  him  there ;  that  the  effort  would  be  all  on  my  part. 
For  with  the  first  move  he  made  I  was  sure  that  he  was 
already  headed  for  the  place  he  had  named.  He  merely 
allowed  me  to  know  how  far  he  would  have  gone  by  the 
next  day. 


THE   LAWYERS   AND   THE   COURTS  47 


VI 

Constitutional  Intentions 

WHEN  I  found  my  friend  the  Ass  next  day  he 
was  scratching  his  chin  on  one  of  the  weather- 
worn pickets  of  the  fence  around  a  grave. 
There  were  only  two  graves,  one  on  each  side  of  the 
wash.  But  there  had  been  a  cloud-burst  since  the  min- 
ing camp  of  Panamint  had  exploded  by  the  bursting  of 
its  dreams  of  wealth ;  and  maybe  the  rush  of  water  had 
taken  other  dead  men  down  the  cafion  into  the  little  salt 
lake  in  Panamint  Valley.     He  turned  on  me  promptly. 

"Taking  up  your  condensed  wisdom  in  detail,  why 
should  the  stubbornness  or  pugnacity  of  a  litigant  play 
any  considerable  part  at  all  in  determining  the  length 
of  time  it  should  take  for  a  case  to  go  through  the  mill 
of  justice?  The  definition  of  justice  itself  implies  that 
this  shall  not  be  allowed  to  play  a  part.  It  may  be  dif- 
ficult to  assign  to  each  factor  its  share  of  the  respon- 
sibility; the  builders  of  your  judicial  system  and  the  vol- 
untary habits  of  your  judges  and  lawyers  in  court  prac- 
tice are  the  two  great  responsible  parties.  That  a  large 
part  of  the  imperfections  are  easily  curable  is  not  diffi- 
cult to  prove.  The  contrast  between  your  system  and 
that  of  Great  Britain  has  been  so  often  emphasized  that 
it  has  begun  to  irritate.  From  ex-President  Taft  down, 
the  best  thinkers  deprecate  the  uncomfortable  difference 
between  the  two  methods  of  dealing  out  justice. 

'Terhaps,  however,  no  more  stinging  comparison  has 
been  made  than  between  the  practice  and  results  on  the 
two   sides   of   the  imaginary   line  between  the  United 


48  THE  CASE  OF  THE  PEOPLE  AGAINST 


States  and  Canada.  Justice  Middleton  of  Toronto  said, 
'We  try  our  cases  here  before  you  people  in  the  States 
get  your  juries.'  Justice  Riddle  of  the  High  Court  of 
Justice  tried  four  criminal  and  seven  civil  cases  and  was 
home  again  in  Toronto  before  an  American  judge  across 
the  line  had  half  of  his  jury  in  a  murder  case.  Riddle 
said,  Tn  my  thirty  years'  experience  I  never  saw  it  take 
more  than  half  an  hour  to  get  a  jury.  I  have  never 
known  even  a  murder  case — except  one — to  take  more 
than  four  days.'  There  is  no  difference  in  moral 
standards  or  intellectual  capacity  or  points  of  view  or  in 
the  nature  of  their  legal  business  between  the  province 
of  Toronto  and  the  states  adjoining  it — nothing  but  the 
fact  that  the  American  people  have  become  tangled  in  a 
system  which,  if  they  were  once  rid  of  it,  they  would 
never  dream  of  tolerating. 

"The  makers  of  constitutions  and  laws  have  in  mind 
perfectly  definite  results  which  those  constitutions  and 
laws  are  expected  to  work  out.  But  very  often  the  col- 
lateral, unexpected  results  are  more  important — some- 
times even  disastrously  important — than  the  direct  in- 
tentional results.  Some  of  the  most  far-reaching  effects 
of  your  federal  system  of  government  were  not  even 
dreamed  of  at  the  time  the  constitution  was  adopted. 
The  system  has  been  and  probably  always  will  be  a  good 
system  for  the  United  States.  In  a  great  country  Hke 
this,  internal  disturbances  are  bound  to  be  local  in  their 
origin,  and  the  federal  system  tends  to  keep  them  local. 
It  is  like  an  insurance  company;  it  distributes  the  dan- 
ger and  quarantines  it,  too. 

"But  that  same  federal  type  of  government  is  the 
foundation  of  your  elaborate  system  of  judicial  appeal; 
and  the  spirit  of  the  federal  system  has  not  only  nursed 
to  gigantic  proportions  your  faith  and  belief  in  such  a 


THE   LAWYERS   AND   THE   COURTS  49 

judicial  system  but  has  been  the  cause  of  endless  confu- 
sion. Each  state  is  itself  a  federal  system,  so  that  all 
your  political  and  governmental  thought  has  twined  it- 
self on  that  trellis  work.  That  many  tremendous  diffi- 
culties have  owed  their  existence  to  the  nature  of  the 
system  is  plain  enough  when  they  are  considered.  While 
the  separate  states  controlled  bankruptcy  matters  within 
their  own  jurisdictions  there  were  endless  chicanery, 
confusion,  complexity  and  delay,  often  amounting  to 
downright  cruelty  and  all  but  absolute  denial  of  justice. 
The  situation  became  finally  so  unbearable  that  bank- 
ruptcy was  taken  from  the  control  of  the  states  and 
placed  under  the  jurisdiction  of  the  federal  courts." 

"I  never  had  much  sympathy  for  bankrupts  any- 
how," said  I,  "and  can  see  no  reason  why  his  troubles 
should  be  reduced." 

With  a  villainous  irrelevance,  which  he  emphasized 
by  turning  his  head  toward  another  part  of  the  land- 
scape, the  Burro  said,  *'I  have  often  wondered  why  it 
would  not  be  appropriate  to  apply  the  expression  'half- 
witted' to  people  who  always  insist  on  considering  only 
half  of  the  facts  relating  to  an  issue.  You  are  ready  to 
dismiss  the  whole  matter  because  you  take  no  interest  in 
the  bankrupt.  But  it  happens  that  under  the  old  system 
practically  all  the  wrong  was  suffered  not  by  the  bank- 
rupt but  by  his  creditors.  As  usual,  it  was  those  who 
had  rights  to  enforce  that  were  severely  punished  by  the 
failure  of  the  system  to  do  its  proper  work. 

''During  the  past  generation  the  increasing  evils  of 
divorce  have  worried  the  whole  nation.  Part  of  the 
trouble  is  due  to  the  changing  character  of  the  people, 
but  the  nature  of  the  political  system  has  greatly  encour- 
aged it.  There  has  for  many  years  been  a  strong  de- 
mand that  divorce  like  bankruptcy  be  made  uniform  by 


50  THE   CASE   OF   THE   PEOPLE  AGAINST 


taking  it  from  the  jurisdiction  of  the  states  and  placing 
it  under  control  of  a  federal  law. 

"And  so  the  fundamental  political  doctrines,  even 
that  of  state  rights  itself,  are  perpetually  in  the  caldron. 
The  moral  efforts  of  the  nation  in  connection  with  bank- 
ruptcy and  divorce  show  how  your  people  seek  to  escape 
the  legal  and  moral  confusion  inherent  in  the  federal 
system  by  removing  their  most  serious  problems  to  na- 
tional control,  centralizing  them,  and  to  that  extent 
overthrowing  the  federal  theory.  An  interesting  evi- 
dence of  the  gravity  of  the  problems  is  the  interstate 
conferences  of  governors  and  other  officials  held  in  re- 
cent years,  the  chief  purpose  of  which  has  been  to  se- 
cure more  uniform  laws  and  methods." 

"Even  if  all  you  have  said  is  admitted,"  said  I,  "in 
the  course  of  time  the  difficulties  that  were  not  foreseen 
by  the  founders  of  the  federal  system  will  be  adjusted 
and  then  the  governmental  flexibility  of  that  system  will 
appear  greater  even  than  now.  And  anyhow,  the  ques- 
tions you  are  discussing  are  legal  rather  than  judicial. 
The  courts  will  follow  the  progress  made  by  the  law." 

"It  is  not  only  the  difficulties  inherent  in  the  nature 
of  the  federal  system  that  have  caused  trouble,"  said 
the  Burro.  "The  country  is  now  not  only  far  greater 
than  the  founders  ever  dreamed  it  could  be,  but  it  is  now 
a  different  kind  of  nation  from  what  it  was  at  the  start. 
The  system  was  constructed  to  suit  the  needs  of  govern- 
mental units  largely  independent  of  each  other  in  prac- 
tical life.  When  the  constitution  was  adopted  the  thir- 
teen states  were  not  nearly  so  closely  associated  commer- 
cially, socially  and  politically  as  the  forty-eight  states  of 
the  Union  are  now.  The  instruments  of  communication, 
of  which  the  founders  had  no  foreknowledge,  have  given 
to  nearly  every  phase  of  Hfe  an  interstate  character. 


THE   LAWYERS   AND   THE   COURTS  51 

"When  every  man  raised  his  own  strawberries  or  his 
children  picked  wild  ones  among  the  pine  stumps,  and 
the  butcher  bought  cattle  from  the  farmers  of  his  own 
county  these  things  were  not  subjects  of  interstate  dis- 
cussion. But  now  that  the  whole  nation  eats  strawber- 
ries from  the  south,  beef  from  the  corn  and  grazing 
states  and  melons  and  cantaloupes  from  Imperial  Val- 
ley, the  railroads,  the  beef  trust  and  the  refrigerator  car 
lines  have  become  national  problems  with  all  sorts  of 
local  implications.  If  a  state  seeks  to  control  the  rail- 
roads or  the  liquor  business  or  epidemic  disease  or  the 
sale  of  cigarettes  to  the  children  within  its  borders  those 
who  disHke  such  control  take  advantage  of  the  federal 
system  to  hamstring  the  law,  and  often  laugh  the  law  of 
their  own  state  to  scorn.  The  process  is  double-acting; 
when  a  state  seeks  to  deal  with  a  question  the  interested 
parties  drag  it  into  the  national  arena,  and  when  it  is 
dealt  with  by  the  national  government  they  seek  cover 
again  under  the  protective  sovereignty  of  the  state.  In  a 
thousand  ways  judicial  process  has  been  made  complex 
and  slow  by  a  written  constitution  that  was  imposed  up- 
on the  nation  a  hundred  and  twenty-five  years  ago  by  a 
vote  of  perhaps  250,000  men — about  half  as  many  as 
Roosevelt's  Republican  majority  in  Pennsylvania  in  1904. 

"The  system  has  lent  itself  too  readily  to  the  corrupt 
law-breaker.  It  is  in  its  nature  an  obstacle  to  cheap  and 
efficient  justice.  It  has  been  the  artful  dodger's  para- 
dise, the  fruitful  cause  of  the  triumph  of  technicality 
and  evasion." 

He  reached  a  pause  in  the  flow  of  his  political  phil- 
osophy and  I  broke  in.  "Speculative  wisdom  is  one  thing 
and  practical  conduct  another.  Would  you  have  the 
American  people  overthrow  their  system  of  government 
in  the  interest  of  cheaper  and  more  efficient  justice?" 


f 


52  THE   CASE   OF   THE    PEOPLE   AGAINST 

He  answered,  "I  and  my  whole  race  have  always  re- 
fused to  take  advice  from  anyone ;  witness  the  refusal 
of  my  great  ancestress  to  do  as  she  was  told,  even  un- 
der physical  compulsion;  and  we  never  give  advice  to 
others.  But  your  people  might,  by  searching,  find  some 
very  simple  remedies  for  the  worst  of  their  troubles. 
The  question  is  not  whether  the  system  shall  be  over- 
thrown, but  whether  because  of  its  great  worth  in  other 
ways  it  shall  be  retained  and  the  difficulties  overcome  by 
some  simple  changes. 

"If  the  people's  modes  of  thought  have  changed 
enormously  in  a  hundred  years  shall  the  judges  restrain 
the  people's  purpose  by  saying  that  the  old  constitution 
forbids  it?  A  very  sharp  attack  might  be  made  against 
the  sacred  doctrine  that  an  old  constitution  can  override 
the  new  wants  of  a  nation.  But  that  is  not  necessary. 
In  all  ages  constitutions  and  laws  have  been  made  to  say, 
not  what  dead  men  thought  they  said,  but  what  living 
men  wanted  them  to  say.  Even  great  moral  laws  have 
been  bent  to  suit  the  present  purposes  of  men.  The 
meaning  of  a  general  legal  principle  is  at  any  given  time 
a  matter  of  interpretation  in  connection  with  a  given  set 
of  facts.  Interpretation  of  laws  is  the  great  field  in 
which  the  moral  desires  and  psychological  processes  of 
large  groups  of  men  are  worked  out.  It  varies  all  the 
way  from  a  strict  and  literal  adherence  to  the  letter  of 
the  law  without  any  regard  to  its  general  purpose, 
through  conservative  confidence  that  the  law  is  all-wise, 
to  liberal  stretching  of  its  meaning  to  cover  new  things 
that  were  not  dreamed  of  when  it  was  made,  and  even 
to  the  most  consummate  casuistry  that  by  intellectual 
gymnastics  turns  truth  into  falsehood  and  then  makes 
the  falsehood  pander  to  low  moral  desires." 


THE   LAWYERS   AND   THE   COURTS  S3 


VII 
Progress  by  Evasion 

AFTER  A  long  pause,  during  which  he  seemed  to  be 
/\  gathering  himself  up  for  a  still  greater  effort,  my 
1    V    friend,  the  Talking  Jackass,  went  on: 

'Tn  all  those  human  societies  which  have  helped  to 
make  modern  civilization — Hebrew,  Greek,  Roman,  Teu- 
tonic— there  have  been  long  and  slow  but  sure  and  fate- 
ful changes,  like  the  invisible  drift  of  the  solar  system; 
and  the  changes  were  usually  made  only  by  the  utmost 
ingenuity  and  often  at  the  price  of  great  suffering.  A 
growing  crab  has  to  molt  its  hard  old  shell  at  the  cost  of 
both  fear  and  pain.  The  shell  that  hardened  to  protect 
its  owner  becomes  by  that  very  hardening  a  clamp  on 
its  owner's  Ufe.  The  shell  must  be  cast  or  the  crab  will 
sicken  and  die.  So  a  rule  of  action  that  had  once  been 
the  guide  and  safety  of  a  people's  Ufe  sometimes  became 
an  iron  girdle  that  threatened  to  clamp  the  nation's 
higher  development.  But  to  cast  off  the  girdles  of 
ancient  practice  took  time  and  ingenuity  and  pain. 

"One  of  the  most  interesting  features  in  the  history 
of  progressive  peoples  is  the  constant  effort  to  overcome 
the  old,  once  useful  but  outworn  views  and  methods  in 
public  affairs  without  formally  doing  away  with  them. 
The  old  things  are  retained  as  if  they  seemed  to  be  ne- 
cessities, but  are  set  at  nought  by  legal  fiction,  techni- 
cality and  evasion.  When  the  struggle  is  between  two 
sections  of  the  community  there  is  a  tug  of  war;  but 
when  a  whole  community  has  changed  its  mind,  the  old 
view  has  to  be  jockeyed  into  harmlessness. 


54  THE   CASE   OF   THE    PEOPLE   AGAINST 

'The  conflict  between  what  is  and  has  been  and 
what  ought  to  be — ^the  growing  pains  of  nations — is  no- 
where in  the  history  of  the  world  better  illustrated  than 
in  the  records  of  ancient  Rome.  The  city  grew  from  a 
village  to  be  mistress  of  the  world.  Her  laws  and  cus- 
toms, fitted  for  the  life  of  a  few  people  of  simple  habits 
and  uniform  wants,  had  to  be  stretched  to  reach  across 
centuries  of  struggle,  and  to  suit  the  wants  of  a  great 
variety  of  racial  characters.  Roman  jurisprudence 
sought  to  perform  the  task,  and  its  weapons  were  often 
evasion  of  the  ancient  purpose  of  the  law,  legal  fiction 
and  the  laying  of  stress  on  technicalities  until  the  tech- 
nicalities became  the  foundation  of  new  and  powerful 
legal  processes.  Repeated  eiTorts  were  made  to  adapt 
the  ancient  systems  of  law  to  the  new,  undreamed  of, 
large  concerns  of  the  growing  empire ;  but  its  rapid  de- 
velopment always  left  the  formal  legal  system  lagging 
behind  the  wants  of  the  nation,  and  there  constantly 
sprang  up  these  supplementary  devices. 

"When  once  a  way  of  doing  a  thing  has  been  adopt- 
ed it  tends  to  become  more  and  more  complex.  The  jury, 
which  has  been  regarded  as  the  bulwark  of  Anglo-Saxon 
liberty,  has  by  its  own  development  become  in  some  re- 
spects a  serious  nuisance  and  a  cumbersome  instrument 
of  justice.  The  system  of  appeals  has  grown  so  elab- 
orate that  justice  is  nearly  out  of  reach  of  all  but  the 
rich  because  no  case  can  be  brought  to  an  end.  The 
growing  complexity  of  such  institutions  is  always  per- 
fectly normal  and  logical,  but  there  are  always  two 
grave  results.  Trying  to  make  justice  perfectly  exact 
ends  in  making  it  impossible.  In  the  field  of  law  the 
growth  of  such  conditions  makes  technicality  almost  a 
science  by  itself;    and  casuistry  in  its  worst  sense  be- 


THE   LAWYERS   AND   THE   COURTS  55 

comes  a  part  of  the  necessary  equipment  of  the  modem 
lawyer.  In  the  end  there  always  arises  a  struggle  be- 
tween logic,  which  seeks  to  develop  every  institution  in 
its  own  peculiar  direction,  and  common  sense,  which 
seeks  to  give  the  people  what  they  need  in  the  most  di- 
rect way.  So  that  while  logic  has  gone  on  consistently 
with  its  task,  common  sense  has  had  to  take  refuge  in 
evasion  and  other  devices  to  overcome  the  elaborate  bur- 
den of  logic." 

Here  I  broke  into  the  stream  of  his  thought.  **You 
have  devoted  several  days  to  convince  me  that  evasion, 
technicality  and  so  on,  are  the  roots  of  all  the  evil  in  our 
judicial  system.  And  now  you  draw  from  history  elab- 
orate proof  that  these  devices  are  necessary  to  rescue 
common  sense  from  the  snares  of  logic.  It  seems  to  me 
you  have  boxed  the  compass." 

He  seemed  prepared  for  this  attack,  for  he  turned 
on  me  promptly.  "Who  shall  be  the  judge  of  what  is 
good  and  what  is  bad  in  these  matters  of  technicality 
and  evasion?  When  Athens  recalled  Demosthenes  from 
exile  the  fine  against  him  was  still  due.  But  Plutarch 
explains  that  'they  found  a  method  to  evade  the  law 
while  seeming  to  comply  with  it.  It  was  the  custom,  in 
the  sacrifices  to  Jupiter  the  Preserver,  to  pay  the  persons 
who  prepared  and  adorned  the  altars.  They  therefore 
appointed  Demosthenes  to  this  charge;  and  ordered 
that  he  should  have  fifty  talents  for  his  trouble,  which 
was  the  sum  his  fine  amounted  to.'  The  Spartans  had 
no  naval  commander  like  Lysander;  but  he  had  been 
admiral  once  and  the  law  forbade  that  the  same  man 
should  hold  the  position  twice.  A  national  necessity 
arose  and  the  nation  evaded  its  own  law  by  making  Ara- 
cus  the  figurehead  admiral  and  choosing  Lysander  vice- 


56  THE   CASE   OF   THE    PEOPLE   AGAINST 

admiral  with  all  the  real  power  of  command.  Thus  did 
Sparta  gently  bleed  the  ancient  law  instead  of  crushing 
in  its  skull  for  the  safety  of  the  nation. 

"In  the  course  of  events  the  United  States  decided 
to  build  the  Panama  canal.  Congress  passed  the  neces- 
sary law  and  created  a  commission  of  seven  men  to  be 
appointed  by  the  President.  After  a  year  or  more  of 
investigation  and  preparation  the  commission  proved  to 
be  a  seven-headed  institution.  There  was  too  much  red 
tape,  consultation  and  delay.  The  President  asked  Con- 
gress to  reduce  the  commission  to  three.  Congress  con- 
sidered the  suggestion,  but  for  reasons  of  its  own  failed 
to  carry  it  out.  The  President  got  by  indirection  what 
Congress  had  unwisely  neglected  to  give  him.  By  twist- 
ing the  law  he  made  over  the  commission  into  a  tool 
competent  to  carry  out  the  intent- of  the  law  itself.  He 
did  by  executive  order  what  Congress  refused  to  do  by 
legislative  process,  and  when  he  got  through  a  good 
many  Congressmen  were  astonished  at  what  had  been 
accomplished.  Roosevelt  lived  up  to  the  letter  of  the 
law,  but  gave  it  such  a  powerful  wrench  by  interpreta- 
tion as  to  make  practically  a  new  law  out  of  it.  He  did 
even  more  technical  things  than  this  in  the  course  of  his 
career  as  President.  Such  acts  always  raised  public  dis- 
cussion but  in  the  end  the  judgment  of  the  people  went 
with  him,  because  the  use  of  technicality  accomplished 
what  needed  to  be  done  for  the  pubUc  good. 

"But  when  the  House  of  Representatives  tried  to  use 
technicality  for  the  private  benefit  of  its  members  the 
people  took  an  entirely  different  view.  In  the  fall  of 
1904  the  House  adjourned  its  special  session  and  met  in 
regular  session  on  the  same  day.  In  the  important  mat- 
ter of  the  appointment  of  officers  Roosevelt  made  the 


THE   LAWYERS   AND   THE   COURTS  57 

assumption  that  the  few  minutes  between  the  special 
and  the  regular  session  was  a  recess.  The  people  ap- 
proved Roosevelt's  act.  But  when  the  House  did  the 
same  thing  in  order  to  act  on  the  theory  that  its  mem- 
bers were  entitled  to  the  mileage  from  their  homes  to 
the  seat  of  government  for  the  new  session  there  was  a 
storm.  The  House,  in  one  of  its  bills,  included  an  appro- 
priation of  $i90,cxx)  to  pay  the  members  of  Congress 
the  mileage  for  an  imaginary  recess.  But  the  attempt 
to  get  public  money  on  a  technicality  raised  such  a  storm 
of  criticism  that  the  Senate  promptly  struck  the  item 
out  of  the  bill.  Some  of  the  newspapers  were  even  frank 
enough  to  call  the  Representatives  pickpockets. 

"There  is  a  radical  difference  between  a  nation's  use 
of  technicality  to  get  results  by  the  shortest  and  surest 
way  and  an  individual's  tricky  use  of  technicality  and 
evasion  to  gain  some  private  end.  Analysis  shows  that 
the  use  of  technicality,  legal  fiction  and  evasion  for  gen- 
eral public  purposes  is  in  its  nature  an  effort  to  give  ex- 
pression to  the  will  of  the  people,  and  therefore  to  all 
moral  intents  is  the  most  recent  expression  of  that  will. 
However  informal  and  indirect  the  process  may  be  such 
acts  have  morally  the  effect  of  sound  law.  The  use  of 
the  same  methods  by  an  individual  for  his  own  purposes 
is  regarded  as  an  attempt  to  escape  the  consequences  of 
the  law,  the  sign  of  a  dishonest  purpose.  Inflexibility 
of  the  fundamental  law  leads  naturally  to  devices  for 
escaping  its  injurious  consequences,  and  many  times  in 
history  the  necessary  flexibility  has  been  secured  in  this 
way.  But  it  has  to  be  admitted  that  there  are  always 
grave  dangers  involved  in  the  business  of  making  na- 
tional progress  by  indirection ;  and  for  this  reason  there 
is  real  danger  in  inflexible  governmental  methods." 


58  THE   CASE   OF   THE    PEOPLE   AGAINST 

"It  seems  to  me,"  said  I,  ''that  you  are  running  very 
far  afield.  You  have  drifted  away  from  the  processes 
of  the  American  courts  and  even  from  the  laws  which 
underlie  them,  and  are  now  dealing  with  questions 
about  the  moral  views  of  the  people.  Although  that  is 
a  fascinating  subject  a  too  informal  consideration  of  it 
is  likely  to  become  confusing." 

For  a  moment  the  Burro  paid  no  attention  to  me. 
He  was  intensely  absorbed  in  the  doings  of  a  wasp.  But 
he  apparently  subdued  his  real  feelings  and  went  on: 
''You  are  quite  right,"  he  said,  stealing  my  thunder 
again,  "and  the  more  deeply  the  matter  is  studied  the 
more  clearly  it  will  appear  that  judicial  systems  and  rules 
of  procedure  are  not  an  end  in  themselves  but  are  in- 
tended to  give  safe  and  steady  expression  to  the  moral 
views  of  the  people,  the  consideration  of  which  you 
seem  to  be  afraid  of.  The  worst  charge  that  can  be 
brought  against  the  courts  is  that  they  are  not  readily 
amenable  to  the  needs  and  wishes  of  the  community. 

"There  are  several  ways  in  which  maladjustment 
arises  between  a  system  of  procedure  and  the  purposes 
of  the  people  whom  the  system  is  intended  to  serve.  The 
system  itself,  after  it  is  established,  may  develop  by  its 
own  logical  momentum  and  the  impelling  power  of 
those  who  feed  upon  it,  in  a  direction  opposed  to  the  in- 
terest of  the  people.  Or  there  may  be  a  secular  change 
in  the  conditions  of  life,  making  the  system  out  of  date ; 
or  a  secular  change  in  the  ideals  of  the  people,  so  that 
things  that  once  seemed  worthy  become  objects  of 
amusement  or  contempt.  When  Fabricius  refused  the 
Pyrrhic  bribes,  and  it  could  be  said  of  many  Romans  as 
it  was  said  of  him. 


THE   LAWYERS   AND   THE   COURTS  59 

*thou  didst  virtue  choose 

with  poverty,  before  great  wealth  with  vice/ 

when  'hunger  made  acorns  tasteful,'  and  when  'the 
women  of  old  Rome  were  satisfied  with  water  for  their 
beverage,'  conduct  was  underlaid  with  moral  purpose 
and  power.  In  later  Roman  days  those  old  ways  were 
subjects  for  private  laughter  and  contempt.  The  rela- 
tion of  conduct  to  public  interest  had  undergone  a  com- 
plete change;  appeals  could  no  longer  be  made  to  per- 
sonal character  to  secure  pubUc  ends.  Such  secular 
changes  of  moral  mood  are  more  easily  recognized  long 
afterwards  than  at  the  time  they  are  taking  place.  With- 
in your  own  generation,  within  a  period  of  ten  years  in 
your  own  country,  there  has  been  a  recognizable  swing 
of  the  moral  pendulum  away  from  cynicism  toward  a 
more  powerful  pubHc  moral  purpose." 

''What,"  said  I,  "has  all  this  to  do  with  the  main 
point  at  issue?" 

"The  judges  of  your  higher  courts,"  said  the  Burro, 
"have  for  their  main  task  the  interpretation  of  the  con- 
stitution and  the  laws  in  their  bearing  on  current  events. 
And  the  vital  question  concerning  them  is  whether  they 
will  keep  abreast  of  pubHc  sentiment  and  interpret  the 
laws  in  harmony  with  that  sentiment  or  stickle  to  enforce 
the  naked  letter  of  the  law  upon  the  people's  thought. 
Vast  consequences  depend  on  what  the  judges  happen 
to  be  thinking  about  when  they  are  making  their  deci- 
sions. It  is  as  true  now  as  it  was  two  thousand  years 
ago  that  'the  letter  killeth,  but  the  spirit  giveth  life.' 

"Right  now  the  air  is  full  of  the  feeling  that  the 
chief  business  of  the  upper  courts  is  to  keep  the  meaning 
of  the  laws  within  speaking  distance  of  the  new  needs 


60  THE   CASE   OF   THE    PEOPLE   AGAINST 

of  the  people.  United  States  Attorney-General  McRey- 
nolds  had  vigorously  prosecuted  some  of  the  big  trusts, 
and  there  was  some  question  whether  his  spirit  was  suf- 
ficiently judicial  to  harmonize  with  the  standards  of  the 
United  States  Supreme  Court.  After  President  Wilson 
had  appointed  him  as  a  member  of  the  court  one  of  the 
great  weeklies  of  this  country  touched  upon  the  change 
that  had  in  recent  years  come  over  the  decisions  of  the. 
Supreme  Court.  It  said,  'The  Supreme  Court  has  re- 
cently shown  itself  so  fully  abreast  of  modern  sentiment 
that  the  appointment  of  Attorney-General  McReynolds 
will  be  welcomed  by  the  court  itself.' 

"In  the  fall  of  1914  when  there  was  a  prospect  of  the 
election  of  Justice  Seabury  to  the  New  York  Court  of 
Appeals  the  same  great  weekly  was  pleased  at  the  pros- 
pect of  having  this  judge  of  progressive  proclivities 
placed  on  the  highest  bench  in  the  state.  Why?  Be- 
cause 'for  fifty  years  the  court  has  been  obsessed  by  the 
most  rigid  convictions  upon  constitutional  questions.' 
One  of  the  most  notorious  examples  of  that  court's  in- 
difference to  modern  sentiment  was  the  Ives  decision, 
in  which  it  declared  the  state  Workmen's  Compensation 
Law  unconstitutional  on  the  ground  that  it  took  prop- 
erty without  due  process  of  law.  It  was  the  old  cry  that 
had  served  the  cause  of  so  many  appeals ;  and  after  all, 
in  the  case  of  the  Compensation  Act  it  was  only  a  mat- 
ter of  interpretation.  It  depended  entirely  on  the  social 
point  of  view.  Nearly  every  civiUzed  country  had  al- 
ready adopted  such  a  law,  and  some  of  the  other  states 
already  had  very  complete  and  effective  compensation 
laws.  These  latter  had  no  trouble  in  flourishing  under 
the  old  bugaboo  clause  about  taking  property  without 
due  process  of  law. 


THE   LAWYERS   AND   THE   COURTS  61 


"There  is  a  very  broad  twilight  land  in  which  court 
decisions  hang  entirely  on  the  point  of  view  of  the 
judges.  About  twelve  years  ago  a  child  was  killed  in  a 
street  railway  accident.  In  a  suit  for  the  recovery  of 
damages  for  the  child's  death  the  New  Jersey  judge  held 
that  a  baby  was  a  liability  and  not  an  asset,  and  there- 
fore awarded  damages  of  only  $i.  And  now,  after 
twelve  years,  in  191 4,  the  same  judge,  in  a  similar  case, 
held  that  $1500  was  a  reasonable  award.  We  need  not 
assume  that  the  value  of  babies  had  increased;  the  New 
Jersey  judge  was  merely  thinking  different  thoughts. 
When  men  cease  to  be  interested  in  old  views  the  new 
ones  can  easily  find  a  nest  in  the  old  constitution.  Court 
opinions,  like  public  opinion  in  general,  change,  not 
merely  by  argument,  but  largely  by  the  death  of  the 
elders.  Old  opinions  merely  lose  force  in  the  general 
shifting  of  human  interest." 

"If  what  you  have  said  is  true,"  I  remarked,  "why 
have  a  permanent  system  like  ours  at  all?  Why  not  let 
judicial  procedure  and  sentiment  take  their  form  and 
color  at  any  time  altogether  from  the  passing  interests 
of  the  hour?" 

"Because,"  said  he,  "there  will  always  be  a  sharp  dif- 
ference between  the  permanent  principles  of  justice  and 
the  momentary  interests  of  any  given  time."  Nothing 
was  said  for  a  while ;  and  then  he  moved  away  as  if  his 
going  had  been  decreed  when  the  world  was  made. 
There  was  no  explanation  or  excuse,  no  hurry;  only  an 
atmosphere  of  the  inevitable.  And  he  was  going  up  hill. 
That  meant  that  if  I  wanted  to  see  him  again  soon  I 
would  have  to  climb,  too. 


62  THE   CASE   OF   THE    PEOPLE   AGAINST 


VIII 
Priestcraft  and  Progress 

THE  Talking  Jackass  had  after  his  fashion  backed 
me  away  from  every  position  I  had  taken.  But  I 
was  still  unsatisfied  and  hoped  to  make  him  ex- 
plain how  a  great  system  of  judicial  principles  and  pro- 
cedure could  develop  logically  and  finally  grow  out  of 
harmony  with  the  requirements  of  justice  as  they  are 
embodied  in  the  moral  needs  and  desires  of  a  great,  pro- 
gressive nation. 

Early  the  next  morning  I  sought  him  in  the  higher 
reaches  of  the  North  Fork.  After  two  hours  of  strenu- 
ous climbing  and  eye-strain  I  heard  the  growl  of  a  piece 
of  rock  working  its  way  down  the  side  of  the  mountain 
in  the  distance  above  me.  Then  all  was  as  still  again 
as  if  nature  were  slowly  getting  ready  for  another  hot 
and  silent  day.  By  great  effort  I  was  able  to  separate 
the  form  of  the  Burro  from  the  high  shelf  on  which  he 
stood  and  from  the  rocks  and  little  trees  around  him. 
He  had  evidently  seen  me  for  a  long  time.  When  I  had 
seated  myself  in  front  of  him,  wiped  the  sweat  from  my 
forehead,  and  composed  my  heaving  breath,  I  said, 
"Will  you  indicate  how  our  judicial  system  has  devel- 
oped logically  until  it  is  so  largely  out  of  harmony  with 
the  moral  purpose  of  the  people  ?" 

For  a  while  he  held  the  steady,  far-away  look  that  I 
had  come  to  accept  as  a  sign  that  some  great  thought 
was  unwinding  itself  in  his  mind.  So  I  waited  with 
great  patience  for  something  important;  and  it  came 
abruptly.    His  first  remark  seemed  altogether  irrelevant, 


THE   LAWYERS   AND   THE   COURTS  63 

but  before  he  had  time  to  develop  its  meaning  my  own 
mind  began  to  trot  ahead  of  his  unfolding  thought  Uke 
a  Uttle  dog  ahead  of  a  horse. 

"Even  as  late  as  19 14,  when  there  were  in  all  ninety- 
six  members  of  the  United  States  Senate,  sixty-nine  of 
them  were  lawyers,  and  some  of  the  others  had  at  some 
time  or  other  either  practiced  or  at  least  studied  law. 
Does  that  have  any  significance  for  you?  It  would  not 
be  hard  to  make  an  actual  count  of  the  lawyers  who 
have  acted  as  federal  and  state  legislators  and  get  their 
relative  numerical  strength  in  legislative  halls.  But 
their  influence  on  legislation  bearing  on  the  judicial  sys- 
tem has  been  one  of  those  boundless,  insinuating,  inde- 
finable elements  which  can  be  measured  only  by  an  inti- 
mate study  of  the  institutions  they  have  helped  to  shape. 

"Whenever  in  the  history  of  a  nation  the  legislation 
has  been  controlled  in  a  large  measure  by  one  class  of 
the  population,  whose  influence,  superiority  or  power 
rested  on  that  legislation,  the  secular  drift  of  the  laws 
has  always  been  one-sided.  While  the  patricians  main- 
tained themselves  as  masters  of  the  Roman  law,  what 
did  the  law  do  for  the  plebeians?  The  plebeians  got 
their  rights  by  pouting,  seceding  and  fighting.  The  pa- 
tricians yielded  to  fear  at  last ;  but  as  long  as  they  were 
able  to  do  it  they  hedged  themselves  within  a  mountain- 
ous wall  of  special  legal,  judicial  and  military  privileges. 
It  was  a  self-sustaining,  self-dependent  organization. 

"The  constitution  of  the  United  States  prescribed  the 
mode  of  electing  the  federal  senators.  The  intention 
was  that  they  should  be  the  elder  statesmen.  Their 
election  was  not  to  be  entrusted  to  the  fickle  populace, 
but  to  the  wisdom  of  the  state  legislatures.  In  practice 
the  system  worked  all  sorts  of  public  wrong.  The 
ground-work  of  the  election  of  a  United  States  Senator 


64  THE   CASE   OF   THE    PEOPLE   AGAINST 

was  often  laid  in  the  nominations  of  candidates  for  the 
state  legislatures.  State  welfare  was  secondary  to  the 
political  desires  of  senatorial  candidates.  In  many  in- 
stances there  were  deadlocks  lasting  many  months  in 
state  legislatures  over  the  choice  of  a  United  States  sen- 
ator; and  the  vast  legislative  interests  of  the  state  were 
sacrificed.  The  situation  often  became  a  stench  in  the 
public  nostrils. 

"The  system  of  selection  at  last  produced  its  own 
type  of  senator.  Except  for  some  able,  experienced 
senators  who  were  repeatedly  re-elected  by  their  states, 
the  rest  were  practically  all  the  kind  of  men  one  would 
expect  to  succeed  under  the  system — political  bosses  or 
creatures  of  the  bosses,  representatives  of  great  special 
interests  which  for  their  own  advantage  could  afford  to 
meddle  persistently  with  the  selection  of  legislators.  For 
a  long  while  after  the  situation  had  become  offensive  to 
the  best  political  sense  of  the  people  that  type  of  senator 
was  immune  because  any  change  in  method  of  selecting 
senators  would  first  have  to  be  approved  by  the  Senate 
itself.  There  could  be  no  hope  of  improvement  from  the 
beneficiaries  of  an  evil  system.  The  blow  came  from  the 
outside. 

"Some  of  the  states  provided  by  law  for  the  nomina- 
tion of  senatorial  candidates  by  a  popular  vote  of  the 
electors  of  the  state.  The  worst  that  could  happen  came 
to  pass.  In  the  state  of  Oregon  the  people  nominated 
a  Democrat  as  candidate  for  the  United  States  senator- 
ship,  but  elected  a  Republican  legislature.  The  individ- 
ual legislators,  when  running  as  candidates,  had  pledged 
themselves  to  confirm  the  choice  of  the  people.  Now 
the  Republican  legislators  had  to  break  their  promises 
or  elect  a  Democrat.  There  was  much  condemnation  of 
the  scheme  and  great  uncertainty.    All  the  cunning  cas- 


THE   LAWYERS   AND   THE   COURTS  65 

uistry  of  crooked  politics  and  partisan  feeling  was  ap- 
plied to  prove  that  Republicans  did  not  have  to  keep  a 
promise  if  it  meant  the  election  of  a  Democrat. 

"But  the  moral  power  of  Oregon,  backed  by  the 
moral  approval  of  an  on-looking  nation,  forced  for  once 
the  keeping  of  political  promises.  A  Democratic  United 
States  senator,  the  choice  of  his  people,  was  elected  by 
a  reluctant  Republican  legislature.  And  on  that  day  was 
tolled  the  deep-toned  knell  of  the  old  system  and  all  its 
undesirable  consequences.  And  thereupon  the  doom  of 
the  system  stalked  into  the  senate  itself.  Suddenly  the 
system  crumbled  when  the  individual  senators,  in  a 
spirit,  not  of  righteousness  but  of  self-preservation  so 
far  as  that  might  still  be  possible,  deemed  it  advisable 
to  let  the  people  rule.  In  March  191 1  the  senate  came 
within  four  votes  of  submitting  an  amendment  to  have 
senators  elected  by  popular  vote.  At  the  second  session 
of  the  sixty-second  congress  the  house  and  senate 
passed  the  concurrent  resolution  relating  to  the  XVIIth 
amendment  concerning  the  popular  election  of  senators. 
The  fire  had  been  burning  very  long,  and  the  final  crash- 
ing of  the  timbers  was  spectacular.  By  the  fifteenth  of 
April  1 91 3  thirty-six  states  had  adopted  the  amendment 
and  it  became  a  part  of  the  constitution. 

"This  short  and  simple  tale  reveals  a  number  of  re- 
markable things.  It  shows  how  a  senate  built  up  under 
an  undesirable  method  of  selection  was  itself  the  great- 
est obstacle  to  improvement.  Another  important  consid- 
eration is  the  fact  that  the  people  used  the  baldest  kind 
of  legislative  evasion  to  accompHsh  indirectly  what  they 
could  not  accompHsh  directly.  As  often  before  in  the 
long  course  of  history,  legislative  evasion  became  a  mor- 
al necessity  in  order  to  give  expression  to  the  wish  of 


66  THE   CASE   OF   THE    PEOPLE   AGAINST 


the  people.     You  were  somewhat  shocked  when  I  en- 
forced that  doctrine  with  historical  examples." 

There  was  a  long  silence.  I  shoved  a  loose  stone  off 
the  edge  of  the  rocky  shelf  with  my  foot  and  listened 
while  it  worried  its  way  down  the  mountain.  Even  the 
A^s  leaned  his  ears  forward  to  catch  the  fading  sounds. 
I  re-opened  the  talk  with  an  assertion.  *'It  is  true  that 
when  a  special  class  dominates  legislation  that  legisla- 
tion sometimes  tends  to  run  to  a  peak.  But  in  a  great 
and  active  nation  so  many  elements  of  a  coercive  nature, 
social,  religious,  political,  economic,  enter  into  the  activi- 
ties of  legislators,  so  many  cross  purposes  play  upon  the 
situation,  that  no  one  of  them  can  finally  and  completely 
dominate." 

He  seized  upon  the  concession  that  I  had  made,  and 
while  seeming  to  agree  with  me  went  on  to  enforce  his 
doctrine.  Then  he  proceeded:  "The  germs  that  smite 
man  with  dangerous  disease  may  in  the  end  undo  them- 
selves. By  their  own  activity  they  develop  poisons  that 
resist  the  further  activity  of  the  germs  themselves.  In 
the  same  way  the  by-products  of  every  intellectual 
movement  accumulate  until  they  poison  it.  Even  scien- 
tific theories  are  not  immune  from  this  dangerous  ten- 
dency. Von  Baer,  the  father  of  embryology,  remarked 
impatiently  on  the  fact  that  every  step  of  real  progress 
in  a  science  results  in  pushing  the  new  principle  to  the 
limit  of  folly. 

"My  race  has  been  the  same  since  man  first  began 
to  use  and  abuse  it.  We  have  been  able  to  stand  by  and 
with  a  steady  mind  observe  the  turmoil  of  men.  We 
know  that  each  human  institution  seeks  to  develop  itself 
logically,  without  serious  reference  to  the  changes  that 
are  taking  place  in  other  social  factors ;  and  after  a 
while  it  finds  itself  out  of  harmony  with  the  general  sit- 


THE   LAWYERS   AND   THE   COURTS  dl 

uation.  It  is  not  an  uncommon  thing  in  human  progress 
to  find  an  institution  that  has  gone  on  developing  along 
its  own  Unes  until  the  great  purpose  for  which  it  was 
created  has  become  a  secondary  consideration. 

"The  laws  of  Moses  about  personal  and  religious  pu- 
rity had  underlying  them  the  common  sense  born  of  ex- 
perience. But  these  rules  had  been  elaborated  and  made 
more  and  more  the  end  of  religious  service  until  at  last, 
in  the  hands  of  the  later  Pharisees,  they  had  become  a 
stench  in  the  nostrils  of  pure  religion.  The  system  of 
rules  was  harmonious  and  logically  they  fulfilled  the  let- 
ter of  the  law.  But  in  practice  they  smothered  the  spirit 
of  pure  religion.  The  rules  themselves  made  men  im- 
mune against  true  religion.  The  Pharisees  devoured 
widows'  houses  and  for  a  pretence  made  long  prayer. 
They  compassed  sea  and  land  to  make  one  proselyte  and 
then  made  him  more  than  ever  a  child  of  hell ;  they  paid 
tithe  of  mint  and  anise  and  cummin,  and  omitted  the 
weightier  matters  of  the  law,  judgment,  mercy  and 
faith;  they  strained  at  a  gnat  and  swallowed  a  camel; 
they  made  clean  the  outside  of  the  cup  and  of  the  plat- 
ter, but  within  they  were  full  of  extortion  and  excess; 
they  were  whited  sepulchers,  beautiful  without  but  with- 
in full  of  dead  men's  bones  and  all  uncleanness.  And 
yet  the  historic  development  of  the  rules  was  systematic 
and  logical. 

But  I  protested,  "There  were  noble  Pharisees ;  Nico- 
demus  and  Simon  and  Gamaliel  were  noble  men.  There 
are  evil  men  in  every  system.  It  is  also  a  great  truth 
that  hypocrites  swarm  around  every  noble  system  of 
thought  and  seek  by  false  pretense  to  profit  by  its  pro- 
tection." 

"Yes,"  conceded  the  Ass  once  more,  "The  moral 
splendor  of  worthy  men  only  makes  the  contrast  great- 


68  THE   CASE   OF   THE   PEOPLE   AGAINST 

er.  But  no  system  of  thought  or  action  that  has  run 
away  at  a  tangent  from  human  need  ever  seems  to  work 
out  its  own  cure  and  salvation.  There  is  no  healthy  ele- 
ment left  with  vitality  enough  to  work  itself  to  the  top 
and  re-create  the  system.  The  Pharisaic  method  per- 
ished and  the  most  prominent  of  its  historic  features  are 
the  curses  that  Jesus  pronounced  upon  it.  The  Flower 
of  the  Spirit,  which  was  to  fill  the  world  with  fragrance, 
bloomed  in  Nazareth,  the  by-word  of  culture,  whence  no 
man  thought  any  good  could  come.  And  out  of  the  his- 
toric gloom  there  came  to  meet  it  the  barbaric  hordes 
whom  the  Romans  looked  upon  as  the  destroyers  of  civ- 
ilization. There  was  a  new  faith,  a  new  Hfe,  a  new  civili- 
zation.   The  new  life  came  out  of  the  dark  earth. 

''There  are  already  many  signs  that  the  American 
people  will  not  forever  let  their  pharisaic  judicial  sys- 
tem smother  its  sense  of  justice.  If  you  would  but  look 
with  unclouded  eyes  you  would  find  the  unheard-of  new 
things  sprouting  in  unexpected  places.  No  vigorous  na- 
tional life  will  let  itself  be  choked  by  ancient  girdles. 
Somewhere  a  rebellious  spirit  breaks  forth  and  with 
smooth  or  violent  temper  undermines  and  wrecks  the  in- 
stitution. I  have  my  asinine  doubts  whether  the  scribes 
and  Pharisees  and  lawyers  who  build  up  and  feed  upon 
your  judicial  system  are  fully  aware  of  what  is  being 
done  to  it  by  indirection." 

The  land  was  growing  weary  with  the  heat,  and  he 
slowly  moved  away  into  the  shadow  of  a  great  rock.  I 
knew  there  would  be  nothing  more ;  but  he  had  hinted 
at  great  things  and  I  resolved  to  draw  him  into  an  ex- 
planation of  the  things  that  were  being  slyly  done  to  our 
judicial  system  by  indirection.  Later  in  the  day  I  saw 
him  thoughtfully  zigzagging  his  way  down  over  the 
shale  toward  running  water. 


THE   LAWYERS   AND   THE   COURTS  69 


IX 

Truth  Forever  on  the  Scaffold 

JUST  before  night  I  sought  my  friend  again.  The 
level  sunbeams  barely  grazed  the  slope.  The  yel- 
low of  the  high  peak  was  a  richer  yellow ;  the  hard 
porphyry  wall  in  the  east  glowed  pink  and  looked  as  soft 
as  lamb's  wool.  The  Ass  stood  gazing  westward  as  if  he 
expected  the  coming  sunset  to  be  beautiful.  He  fore- 
stalled me  by  commenting  briefly  on  the  historical  posi- 
tion of  lawyers,  their  reputations,  their  standing  in  their 
communities.  The  sunset  must  have  stirred  his  poetic 
impulses,  for  he  went  back  to  the  Bible  and  Shakespeare 
and  the  quaint  old  More  of  Utopian  fame;  and  seemed 
more  interested  in  them  personally  than  in  the  views  he 
was  quoting  from  them.  He  was  very  personal  toward 
the  lawyers;  not  patient  enough  with  them  to  admit 
that  they  were  the  victims  of  a  system,  the  dupes  of  the 
work  they  have  to  do. 

"Do  you  realize  the  extent  to  which  the  lawyer  in 
your  own  day  is  regarded  as  a  pubUc  enemy,  a  stickler 
for  rules,  a  spoiler  of  good  sense,  an  expert  at  making 
the  truth  look  like  falsehood  and  falsehood  like  the 
truth?  In  Utopia  'they  utterlie  exclude  and  banishe  all 
attorneis,  proctours,  and  sergeantes  of  the  law;  whiche 
craftelye  handell  matters  and  subtelly  dispute  of  the 
lawes.'  If  you  should  modernize  the  spelling  you  would 
think  old  Thomas  More  was  speaking  the  mind  of  the 
common  man  today.  It  is  not  necessary  to  consider  the 
lawyer  a  special  form  of  humanity.     His  opportunities 


70  THE   CASE   OF   THE   PEOPLE   AGAINST 


for  mischief  are  unlimited ;  and  opportunity  is  the  gate  of 
guilt.  It  is  an  undeniable  fact  that  in  practice  the  law- 
yer is  a  laborious  casuist.  He  habitually  twists  facts  out 
of  their  proper  relations  to  gain  an  advantage;  and  de- 
liberately cultivates  the  art  of  lying. 

**Take  the  trouble  to  examine  the  complaint  and  the 
answer  in  an  average  civil  suit.  I  have  in  mind  a  case 
in  which  a  Christian  lawyer  filed  an  answer  for  his 
Christian  client.  The  latter  swore  to  its  truthfulness; 
and  both  of  them  knew  that  the  assertions  and  denials 
of  the  answer  were  unqualified  falsehoods.  The  defen- 
dant had  performed  repeated  business  acts  and  outlined 
certain  plans  in  careful  correspondence.  In  the  affidavit 
this  was  all  deliberately  denied  under  oath.  If  this  were 
an  unusual  case  it  would  lose  its  significance ;  but  to  such 
an  extent  has  the  legal  mind  come  to  consider  every- 
thing from  a  technical  point  of  view  that  truth  itself  and 
falsehood  are  coolly  treated  as  technicalities ;  so  that  a 
Christian  lawyer  with  a  Christian  client  can  file  an  affi- 
davit swarming  with  deliberate  falsehoods,  merely  to  se- 
cure an  advantage  of  technical  position  in  a  fight  based 
on  technicality. 

"If  a  man  has  committed  a  crime  and  lies  to  shield 
himself,  his  act  is  humanly  comprehensible;  even  if  a 
man  lies  in  a  civil  case  to  get  something  that  does  not 
belong  to  him,  that  also  is  morally  comprehensible  on 
the  theory  that  he  is  crooked.  But  when  the  system  of 
procedure  tolerates  as  an  habitual  practice  cool,  deliber- 
ate falsehoods  in  official  documents,  which  everybody 
concerned  knows  will  be  exposed  when  the  case  comes 
to  trial,  the  moral  boundaries  are  removed.  Practices 
are  tolerated  which,  among  honorable  men  in  the  ordi- 
nary walks  of  life,  would  be  hooted  for  their  indecency. 


THE   LAWYERS   AND   THE   COURTS  71 

"When  the  charges  are  made  in  this  way  they  seem 
bald,  crude,  exaggerated.  But  the  moral  degeneration 
exhibited  in  many  parts  of  court  practice  is  a  legitimate 
product  of  the  system.  If  the  trial  court  were  the  seat 
of  the  people's  power,  to  which  both  parties  were  re- 
quired to  bring  without  excuse  or  delay  all  the  facts  for 
a  real  decision,  trickery,  delay,  falsehood,  all  the  bad  ele- 
ments based  on  technicality,  would  be  eliminated  or  re- 
duced to  a  minimum.  They  would  become  dangerous  to 
the  party  using  them.  They  are  always  characteristic 
of  a  system  steeped  in  a  spirit  of  hypocrisy,  of  mock 
morality. 

''Hundreds  of  the  ablest  judges  have  complained  of 
the  situation  and  have  indicated  in  various  ways  what 
is  the  matter  and  how  it  might  be  cured.  Judge  Frank 
Dunne,  a  bright,  able,  experienced  superior  judge,  who 
distinguishes  sharply  between  habitual  criminals  and  de- 
cent fellows  gone  wrong,  said,  in  a  careful  public  ad- 
dress, 'The  administration  of  justice  in  this  country  has 
degenerated  into  a  game.  The  attorney  for  the  defence 
is  one  player,  the  district  attorney  is  the  other;  the  de- 
fendant is  the  pawn  and  the  judge  is  the  umpire.  An 
appeal  is  decided  not  on  the  guilt  or  innocence  of  the 
prisoner,  but  upon  whether  or  not  one  of  the  rules  of 
the  game  has  been  violated.  Justice  has  become  ob- 
scured in  a  cloud  of  technicality.'  There  have  been 
numberless  declarations,  from  trial  judges  to  Presidents 
of  the  United  States,  to  the  effect  that  so  far  as  the  pri- 
mary purpose  of  the  courts  is  concerned,  your  courts  are 
a  failure  and  a  disgrace. 

"But  the  farcical  nature  of  judicial  performance  is 
abundantly  attested  in  civil  as  well  as  criminal  cases; 
and  not  only  in  the  state,  but  in  the  more  important  and 


72  THE   CASE   OF   THE   PEOPLE   AGAINST 

dignified  federal  courts.  Judge  Maurice  T.  Dooling  of 
the  United  States  District  Court  said,  in  dealing  with  the 
involuntary  bankruptcy  proceedings  brought  against  the 
Realty  Syndicate  of  Oakland,  California,  'It  has  been 
my  experience  since  handling  bankruptcy  matters,  that 
when  an  enterprise  lands  on  the  rocks  of  bankruptcy 
marshal's  fees,  attorney's  fees  and  other  expenses  eat  up 
the  assets  and  there  is  nothing  left  for  the  creditors.' 
And  again,  'But  I  feel  that  it  is  a  big  enterprise,  and 
throwing  it  into  bankruptcy  should  be  avoided  if  pos- 
sible.' And  he  refused  to  let  the  company  be  crowded 
to  the  wall. 

"Now  if  a  great  enterprise  involving  millions,  with 
a  very  substantial  foundation  of  high  grade  property 
could  not  be  allowed  to  go  through  the  bankruptcy  court 
without  at  the  same  time  letting  the  various  processes 
of  the  court  itself  suck  the  life-blood  of  the  enterprise 
and  beat  the  owners  and  creditors  out  of  their  natural 
rights,  is  it  any  wonder  that  the  common  man  has  lost 
faith  in  and  respect  for  the  courts?  Is  it  any  wonder 
that  the  average  litigant  realizes  that  after  he  has  won 
one  law  suit  he  was  himself  really  the  loser;  that  by  the 
time  he  has  won  two  law  suits  he  is  hard  up,  and  when 
he  has  won  three  he  is  financially  broken  ? 

"In  August  1914  one  of  the  great  American  weekHes 
had  this  heavy  but  short  and  pithy  editorial:  'Andrew 
Carnegie,  a  successful  business  man  of  Pittsburgh,  re- 
cently gave  out  four  rather  ordinary  precepts  under  the 
heading:  "My  rules  for  manufacturers."  The  final 
clause  of  the  second  rule  deserves  attention :  "Avoid  re- 
sort to  law ;  compromise."  Remember  that  this  comes 
from  the  long  experience  of  a  man  of  wealth  and  power 
who  was  able  to  enlist  for  himself  litigation's  every  pos- 


THE   LAWYERS   AND   THE   COURTS  73 

sible  advantage.  There  is  nothing  in  it.  As  applied  to 
business  the  whole  apparatus  of  law,  lawyers  and  courts 
is  slow,  expensive,  inefficient.  We  would  like  to  hear 
some  lawyers  explain  Mr.  Carnegie's  precept  in  terms 
reflecting  credit  on  the  dignity  and  social  service  of  the 
legal  profession.  Can  it  be  done?'  In  the  face  of  such 
testimony  and  criticism  it  is  almost  unseemly  for  a  des- 
ert Ass  to  comment  at  length  on  a  situation  that  is  prac- 
tically undenied  and  undeniable. 

"The  difficulty  about  the  judicial  system  is  that  its 
victims  have  no  means  of  bringing  about  a  change.  The 
dominating  power  in  law  making  has  been  the  lawyers 
themselves.  The  rules  of  procedure  are  their  handi- 
work ;  the  commentaries  on  court  practice  and  decisions 
are  written  by  them;  litigants,  the  moment  they  place 
their  cases  in  the  hands  of  the  lawyers,  have  practically 
nothing  more  to  say  about  the  conduct  of  the  cases. 
And  all  the  time  the  lawyers  feed  upon  the  system  they 
themselves  have  built  up. 

"The  outcome  is  quite  sure  to  be  akin  to  the  results 
worked  out  by  a  strongly  intrenched  priestcraft  of  any 
sort.  When  a  priesthood  has  made  the  laws  and  the 
rules  and  enforced  them,  and  fed  upon  their  success, 
what  can  be  the  outcome?  In  ancient  Egypt  the  ripe 
fruit  of  the  process  was  a  heavy  burden  of  practice  and 
belief  loaded  upon  the  people  by  a  priesthood  that  knew 
the  falsity  of  the  system  and  for  themselves  secretly  held 
entirely  different  conceptions." 

I  asked  him  this  question:  "If  the  judicial  system  is 
so  heavily  burdened  with  frivolous  subtleties  is  there  no 
part  of  the  system  for  which  some  one  can  be  held  re- 
sponsible ?" 

"The  power,"  he  said,  "lies  with  the  appellate  judges. 


74  THE   CASE   OF   THE    PEOPLE   AGAINST 


The  twining  dodder  of  technicality  has  smothered  the 
tips  and  sucked  the  sap  out  of  the  stem  of  the  judicial 
system.  The  trial  judge  is  bound  up  in  a  snarl  of  leaf- 
less yellow  threads.  What  greater  absurdity  could  there 
be  than  this?  The  trial  judge  cannot  help  select  the 
jury.  In  practice  he  has  to  bend  largely  to  the  wishes 
of  the  struggling  parties.  And  yet,  after  he  has  been 
compelled  to  sit  helpless  in  the  choice  of  the  jury,  after 
all  the  cost  of  time  and  money  wasted  in  a  trial,  he  may 
set  aside  a  verdict  if  it  does  not  suit  him.  In  practice  a 
suit  at  law  is  like  the  trouble  between  two  tom-cats  who 
fill  half  the  night  with  inharmonious  noise;  but  the  fight 
itself  as  a  rule  lasts  less  than  five  seconds. 

**But  there  are  apparent  contradictions  of  what  I 
have  said.  Judge  R.  M.  Wanamaker  of  the  Ohio  Su- 
preme Court  holds  the  trial  judge  primarily  responsible, 
instead  of  the  lawyers,  for  the  judicial  delays.  He  goes 
so  far  as  to  urge  that  the  judge  shall  select  the  jury,  and 
says  in  support  of  this  suggestion,  that  in  most  states 
there  are  no  statutes  to  prevent  it.  But  this  only  empha- 
sizes the  extent  to  which  in  practice  the  powers  of  the 
trial  judge  have  become  latent.  This  has  been  brought 
about  almost  entirely  through  fear  of  the  higher  courts. 
It  is  necessary  for  him  to  exercise  particular  care  to  ob- 
serve all  the  formaUties  lest  some  higher  court  might 
hold  that  he  had  prejudiced  the  rights  of  one  of  the  par- 
ties. Hence  also  the  far-spreading  convenience  of  the 
lawyer.  Under  the  ridiculous  assumption  that  he  is 
looking  after  his  client's  interest  continuance  after  con- 
tinuance is  granted  merely  because  the  lawyer  is  not 
ready.  If  the  trial  judge  showed  signs  of  becoming 
peremptory  and  an  appeal  were  taken  there  would  be  a 
ready  affidavit,  likely  false  in  substance,  to  prove  that 


THE   LAWYERS   AND   THE   COURTS  75 

somebody's  interests  had  been  sacrificed.  The  key  to 
the  whole  situation  is  the  trial  judge's  lack  of  control  at 
any  point  in  the  game.  If  the  judge  should  suddenly  be- 
come a  real  power  in  his  own  court  and  be  bent  on  ex- 
pediting the  people's  business,  compelling  lawyers  to  be 
ready,  what  a  rattling  of  dry  bones  there  would  be." 

Night  was  falling.  The  cold  gray  walls  of  the  oppo- 
site cliffs  turned  ashy  and  then  slowly  darker,  A  little 
crimson  cloud  hung  briefly  over  the  eastern  wall;  then 
it  too  turned  ashy  gray.  A  belated  crow  flapped  his  som- 
ber way  along  the  rim  of  the  cliff  and  cawed  an  ominous 
warning  of  the  coming  darkness.  Night  perched  on  the 
eastern  ridge  like  a  vulture,  waiting  patiently  for  the 
death  of  its  victim  Day.  The  Seven  Stars  came  early 
over  the  rim  out  of  Death  Valley,  and  I  left  the  philoso- 
pher, wondering  whither  I  would  next  be  driven  by  his 
battering  methods  of  conversation. 


7^  THE   CASE   OF   THE    PEOPLE   AGAINST 


X 

Medical  Science  and  Legal  Casuistry 

WHEN  I  drifted  into  the  desert  I  had  no  purpose 
at  all;  but  the  Ass  had  now  given  me  one. 
And  like  other  men  with  only  one  intention,  I 
pursued  it  constantly.  I  was  anxious  to  find  him  again, 
but  for  days  he  had  eluded  me.  I  made  a  systematic 
search  and  concluded  that  he  must  have  left  the  country. 
There  were-  other  burros  in  the  hills  and  the  only  sign 
by  which  I  could  distinguish  his  tracks  from  those  of 
the  others  was  the  old  shoe  that  still  clung  to  his  foot. 
He  must  have  wrenched  it  between  two  rocks  since  the 
famous  thrust  at  my  knee,  for  its  track  was  at  a  curious 
angle  to  the  direction  in  which  he  travelled.  There  was 
no  sign  of  the  old  shoe  on  the  trail  over  the  pass  into 
Hungry  Bill's  Cafion,  nor  on  the  trail  over  the  ridge  on 
the  south.  He  must  have  gone  down  and  out  at  the 
mouth  of  Surprise  Canon. 

I  picked  up  his  track  a  mile  below  camp.  For  some 
distance  it  indicated  a  rambling  disposition,  for  he  had 
been  feeding  indifferently,  and  had  slid  into  the  wash 
for  a  drink.  But  farther  on  there  was  a  directness  in  his 
course  that  was  a  sure  sign  that  he  had  something  defi- 
nite in  mind.  The  track  of  another  burro  joined  his; 
then  another.  At  the  mouth  of  the  canon  there  were  the 
tracks  of  four,  and  their  trail  swung  north  into  the  stage 
road.  The  Talking  Jackass  had  left  me.  I  followed 
them  along  the  eastern  edge  of  Panamint  Valley,  east 
of  the  little  salt  lake,  across  the  little  stream  that  comes 


THE   LAWYERS   AND   THE   COURTS  17 

out  of  Hall's  Valley;  and  stopped  to  ask  Panamint 
Charlie,  the  old  Indian,  whether  he  had  seen  any  burros. 
"Yes,  four:  one  white,  black  nose;  one  black,  white 
nose;  one  gray,  white  face;  one  big  dark  one,  old;  he 
was  the  leader.  They  went  by  two  days  ago.  Drank  a 
little  at  the  creek;  stood  around  for  several  hours  on 
the  ridge  in  the  distance  on  the  north.  They  have  gone 
to  Wild  Rose  Caiion."    That  was  the  Indian's  judgment. 

I  went  the  long  hot  way;  saw  where  they  had  stood 
about  and  rolled;  where  they  had  meandered  along,, 
each  one  half  forgetful  of  the  fact  that  he  was  a  mem- 
ber of  a  travelling  party,  while  he  sought  food  in  slen- 
der mouthfuls.  I  met  the  desert  stage  coming  down  the 
grade,  but  the  driver  had  not  seen  that  particular  bunch 
of  burros.  We  were  both  lonesome  and  chatted  desert 
commonplaces  and  the  somewhat  elderly  news  from  the 
outside.  In  the  canon  I  passed  the  stage  station ;  it  was 
a  tent  with  a  man,  two  cats  and  a  dog ;  the  stable  was  a 
bit  of  overhanging  cliff.  Farther  up  was  the  establish- 
ment of  Kennedy,  the  squaw  man,  who  was  raising  a 
brood  of  halfbreeds  and  a  few  vegetables  near  the 
springs,  and  traded  with  occasional  passersby.  Sho- 
shone Indians  were  camping  near  and  they  said  that  the 
burros  had  gone  up  Wild  Rose  Canon  along  with  a  band 
of  theirs. 

I  went  up  to  the  old  charcoal  kilns,  where  years  be- 
fore the  meager  pines  had  been  cut  and  the  charcoal 
burned  and  packed  across  Panamint  desert  to  the  Modoc 
mine  in  the  Argus  range.  The  burros  were  feeding 
close  together  and  I  had  to  wait  for  a  better  time ;  for 
my  Philosopher  never  considered  me  in  the  presence  of 
others.  Next  morning,  after  he  had  warmed  his  tail  in 
the  sun  for  an  hour  and   sauntered   about   another  two 


78  THE   CASE   OF   THE    PEOPLE   AGAINST 


hours  picking  his  breakfast,  I  accosted  him  among  the 
rocks.  He  showed  a  slow  eagerness  that  boded  well, 
and  seating  myself  on  a  rock  while  he  adjusted  his  feet 
among  the  stones,  I  said :  "Suppose  that  all  the  difficul- 
ties that  you  have  emphasized  are  as  serious  as  you  have 
pictured  them.  In  every  age,  in  every  nation,  wherever 
there  has  been  progress  there  has  always  been  strain  be- 
tween existing  institutions  and  the  changing  wants  of 
the  people.  Instead  of  being  a  sign  of  weakness  or  cor- 
ruption or  hypocrisy,  it  is  everywhere  the  sign  of  vigor- 
ous growth.  Will  not  the  healthy  activities  of  public  life 
eliminate  the  ineffective  machinery  and  substitute  a  bet- 
ter?" 

"Oh,  yes,"  said  he,  with  a  quick  forward  movement 
of  the  ears ;  "but  what  we  are  now  interested  in  are  the 
intellectual  and  moral  activities  of  the  class  of  men  who 
have  made  the  machinery  of  justice  ineffective.  There 
are  nearly  as  many  judges,  justices  and  lawyers  in  this 
country  as  there  are  soldiers  and  sailors  in  the  army  and 
navy  of  the  United  States.  The  nation  devotes  some  of 
its  best  educational  efforts  to  training  them.  In  their 
own  profession  there  has  been  no  lack  of  models  worthy 
to  b  imitated.  But "  He  never  finished  the  sen- 
tence ;  after  a  lull  he  started  in  a  new  place. 

"If  the  medical  profession  had  clung  to  blood-sucking 
as  the  fundamental  principle  of  medical  practice,  and 
had  developed  a  luxuriant  system  of  subsidiary  rules  to 
bolster  up  an  essentially  obsolete  practice,  the  doctor 
would  still  be  a  leech  and  his  profession  would  have  to 
face  hatred  and  contempt.  But  the  modern  doctor  has 
become  a  highly  trained  scientific  man.  He  is  ready  to 
sweep  aside  old  methods  altogether  in  the  interest  of  ef- 
ficiency and  good  health.    Thousands  used  to  die  of  'in- 


THE   LAWYERS   AND   THE   COURTS  79 

flammation  of  the  bowels' ;  but  instead  of  developing  an 
elaborate  therapeutic  system  of  treatment  on  the  prin- 
ciple of  the  hot  compress  for  the  patient,  supplemented 
with  a  systematic,  thoughtful  scratching  of  the  head  for 
the  doctor,  the  surgeon  now  opens  the  patient,  cuts  off 
the  appendix  and  sews  him  up  again.  Most  of  the  vic- 
tims recover,  and  when  one  does  die  they  know  what 
was  the  matter. 

"The  progress  of  medicine  has  been  such  that  one 
woud  not  need  to  blush  even  at  the  claim  that  a  divinity 
had  guided  the  doctors  and  their  associate  scientists  in 
their  hopes  and  labors.  The  greatest  and  best  part  of 
the  doctor's  work  now  actually  consists  in  helping  the 
people  avoid  disease,  in  exposing  the  causes  and  con- 
quering them.  In  recent  years  the  work  along  scientific 
medical  lines  has  been  morally  as  well  as  intellectually 
magnificent.  There  is  more  than  enough  hypocrisy, 
charlatanry,  and  false  pretence,  but  the  forms  under 
which  these  things  appear  are  themselves  a  tribute  to 
the  power  of  right  thinking  and  great  principles.  And 
as  always  in  the  history  of  the  world  when  men  have 
been  under  the  spell  of  great  principles,  there  is  the  qual- 
ity of  sacrifice  and  martyrdom.  Witness  the  men  who 
calmly  risked  and  gave  their  lives  that  yellow  fever 
might  be  conquered.  In  the  medical  profession  not  only 
have  details  been  perfected  but  the  very  fundamentals 
of  both  principle  and  practice  have  been  modified  when 
progress  required  it,  with  the  result  that  medicine  now 
rests  on  a  thoroughly  scientific  basis  and  in  its  intellec- 
tual quality  ranks  high  among  the  sciences.  It  is  only  by 
comparison  with  such  professional  vigor  that  the  stale 
and  unprofitable  quality  of  American  judicial  methods 
can  be  appreciated." 


80  THE   CASE   OF   THE   PEOPLE   AGAINST 


"It  seems  to  me,"  said  I,  "that  you  confuse  two  radi- 
cally different  things.  Medicine  in  all  its  bearings  is  a 
physical  science  and  is  susceptible  of  exactness  both  in 
definition  of  principle  and  in  practice.  Judicial  practice 
and  the  principles  of  jurisprudence  fall  among  the  moral 
sciences,  which  cannot  be  subjected  to  exactness  of  defi- 
nition or  practice  without  doing  violence  to  human  na- 
ture. The  latter  must  always  depend  for  their  actual 
substance  upon  the  current  condition  of  the  nation,  its 
social  and  material  outlook  and  its  stage  of  develop- 
ment." 

The  Burro  replied:  "Your  criticism  is  based  on  the 
assumption  that  I  hold  the  underlying  principles  of  your 
judicial  system  unsound.  But  it  is  because  what  you  say 
is  true  that  the  system  has  run  out  of  harmony  with  this 
stage  of  civilization.  What  was  good  and  necessary  at 
the  outset  may  be  a  real  handicap  now.  There  are  ex- 
cellent examples  from  among  your  so-called  moral  sci- 
ences that  help  to  understand  how  a  system  of  thought 
may  develop  itself  out  of  harmony  with  its  surroundings 
by  a  consistent  pursuit  of  principles  that  in  themselves 
are  not  false.  The  forms  of  thought  are  right ;  but  when 
you  begin  to  pour  into  them  the  infinite  and  incessantly 
changing  variety  of  human  interest  the  trouble  begins. 
This  is  especially  true  when  great  thoughts  cease  to  in- 
terest the  nation  and  the  mind  centers  on  petty  advantage 
and  convenience. 

"The  ancient  Hebrew  law  was  believed  to  be  not  only 
sacred  and  inviolable,  but  applicable  to  every  conceiva- 
ble situation  that  might  arise.  As  soon  as  this  thought 
came  to  be  thoroughly  accepted  the  old  and  simple  mean- 
ing of  the  law  was  stretched  and  twisted  to  fit  every 
kind  of  case,  even  such  as  could  not  have  arisen  at  the 


THE   LAWYERS   AND   THE   COURTS  81 

time  the  law  was  first  made.  This  process  grew  into  an 
elaborate  system  of  casuistry  that  finds  its  record  in  the 
Talmud.  But  the  continued  appHcation  of  great  prin- 
ciples to  little  things  to  which  they  should  never  have 
been  applied  at  all,  the  stress  laid  upon  small  matters  to 
the  neglect  of  the  great,  developed  into  a  hard  thick 
crust  of  petty,  unnatural  thought  and  practice.  All 
through  this  system  of  casuistry  there  run  threads  of 
gold,  profound  thought,  spiritual  elevation,  moral  beau- 
ty; but  these  did  not  give  their  quality  to  its  final  form. 
The  drift  was  wrong." 

I  said  in  answer  to  his  argument,  "J^sus  dealt  ade- 
quately with  this  question.  He  only  condemned  the  false 
emphasis  on  Httle  things." 

"The  results  speak  for  themselves,"  he  said.  "The 
system  smothered  spiritual  life  and  it  never  from  within 
brought  about  a  revival  of  spiritual  growth.  But  there 
is  a  still  more  degrading  cause  for  the  growth  of  cas- 
uistry. When  a  people  has  lost  the  desire  to  obey  'the 
law  which  it  once  held  supreme,  and  ceased  to  find  obe- 
dience tolerable,  yet  does  not  dare  to  deny  its  authority,' 
then  it  wants  the  law  explained  away,  and  casuistry  is 
the  ready  servant  to  do  it. 

"The  practice  of  casuistry  in  its  morally  healthy 
sense  developed  naturally  out  of  the  necessities  of  the 
confessional;  and  it  was  doubtless  a  useful  instrument 
in  the  task  of  laying  ecclesiastical  penalties  upon  the  mis- 
conduct of  men.  But  the  degrading  form  in  which  it 
was  developed  by  the  Jesuits  in  the  sixteenth  century 
had  its  roots  in  the  desire  to  keep  within  the  pale  of  the 
church  a  generation  of  men  and  women  who  yielded  only 
a  nominal  obedience  to  the  law  of  Christian  morals,  and 
in  practice  obeyed  the  dictates  of  their  passions.     The 


82  THE   CASE   OF   THE   PEOPLE   AGAINST 

general  method  consisted  in  stating  the  moral  obligation 
of  a  precept  in  terms  that  were  above  criticism  and  then 
tearing  away  all  its  real  force  by  exceptions  and  qualifi- 
cations. The  general  result  of  the  method  was  to  find 
excuses  for  nearly  every  kind  of  human  weakness. 

"Here  again  a  method,  useful  in  its  nature,  and  used 
upon  a  set  of  principles  that  were  entirely  sound,  and 
for  a  purpose  which  in  its  origin  must  appeal  to  the  best 
of  men,  ran  wild  because  the  pressure  from  the  outside 
gradually  twisted  it  out  of  its  proper  course.  Doubtless 
many  of  the  men  who  applied  the  method  were  rather 
the  victims  of  an  uncontrollable  drift. 

"When  Christianity  came  it  shattered  the  Pharisaic 
method  by  making  a  fresh  appeal  to  great  principles. 
When  the  Jesuitical  system  had  run  its  ridiculous  length 
Pascal  gave  it  the  death  blow  with  his  Provincial 
Letters." 

"It  seems  to  me  you  have  begun  to  drift,"  said  I. 
"The  historical  examples  are  interesting,  but  what  is 
their  appHcation  to  the  matter  in  issue?  There  is  noth- 
ing plainer  in  history  than  that  a  new  social  or  political 
or  religious  principle  runs  its  course  of  usefulness  to  an 
apex.  The  machinery  for  its  application  becomes  more 
complicated  and  important  until  the  main  thought  itself 
drops  into  the  background.  When  a  new  start  is  made 
it  is  not  from  the  place  where  activity  ceased  but  from 
some  entirely  new  point.  But  what  has  casuistry  done 
to  our  judicial  methods?" 

The  Burro  looked  across  to  the  other  slope  of  the 
cafion,  where  a  young  jack  hurrying  down  hill  was  loos- 
ening stones  enough  to  batter  a  city  with.  When  he 
again  concentrated  his  attention  on  me  he  answered  my 
complaint  thus :   "In  its  youth  a  nation  may  believe  that 


THE   LAWYERS   AND   THE   COURTS 


83 


it  has  been  called  of  God  to  make  the  world  better ;  and 
in  the  days  of  its  maturity  the  people  may  forget  every- 
thing except  their  private  personal  gain.  Interpretation 
of  the  law  and  the  people's  attitude  toward  it  are  gov- 
erned by  the  kind  of  thoughts  that  are  running  through 
their  minds.  When  the  old  emotions  have  been  overlaid 
with  the  slime  of  sordidness,  when  men  no  longer  believe 
in  their  hearts  the  great  things  that  they  profess  with 
their  lips,  when  their  thought  is  out  of  harmony  with 
moral  rules,  evasion  and  casuistry  are  the  weapons  with 
which  public  morality  is  undone. 

"Your  elaborate  system  of  seeking  and  executing 
justice  tends  to  the  exaggeration  of  its  own  faults  even 
under  the  most  favorable  conditions  of  public  morality. 
But  in  the  end  of  the  nineteenth  and  the  beginning  of 
the  twentieth  century  the  condition  of  commercial  and 
political  morality  was  such  as  to  give  a  tremendous  im- 
petus to  the  unrighteous  use  of  technicality,  evasion  and 
delay.  This  period  and  the  attempts  at  law  enforcement 
on  a  large  scale  reveal  as  well  as  anything  in  its  history 
the  weakness  and  lameness  of  your  system.  No  factor 
in  your  national  life  has  done  more  to  bring  into  promi- 
nence the  weak  points  of  your  judicial  arrangements  and 
to  increase  their  disrepute  than  the  lawlessness  of  the 
great  corporations.  It  became  the  common  understand- 
ing that  they  would  pluck  the  public.  Instances  can  be 
picked  up  in  the  records  in  every  corner  of  the  land, 
from  the  pine-covered  hills  of  northern  Maine  to  the  cac- 
tus-covered deserts  of  southern  California.  With  the 
best  intentions  the  public  could  not  protect  itself. 

"As  fast  as  legislation  was  perfected  new  devices  of 
evasion  were  invented.  By  the  time  the  tortoise-footed 
courts  were  ready  to  deal  seriously  with  a  case  the  aver- 


/ 


84  THE   CASE   OF   THE    PEOPLE   AGAINST 

age  monopoly  was  ready  to  violate  the  purpose  of  the 
law  in  some  other  way.  When  evasion  failed  to  accom- 
pHsh  the  desired  end,  the  law  was  directly  broken  in  the 
assurance  that  with  the  assistance  of  the  'best  lawyers' 
and  the  endless  legal  devices  for  cheating  the  law  itself 
the  punishments  of  the  law  could  be  nullified  and  the 
people  worn  out. 

''Under  your  system  of  determining,  by  endless  ap- 
peals, whether  a  law  is  really  a  law  or  not,  the  great 
business  interests  will  not  admit,  until  compelled  to  do 
so,  that  any  of  the  laws  affecting  them  are  just,  and  they 
will  not  voluntarily  obey  them.  This  is  one  of  the  traits 
of  the  brigand  and  pirate ;  but  the  system  itself  encour- 
ages the  lawless  to  fight  instead  of  yielding.  The  ingen- 
uity of  wrong-doing  can  triumph  because  it  can  take  all 
the  time  it  needs  for  its  purpose.  Evasion  can  keep 
ahead  of  legislation  and  technicality  and  delay  can  hog- 
tie  the  efforts  to  enforce  the  law  until  time  has  mini- 
mized its  importance.  Whatever  improvement  may  be 
made  will  be  due  not  to  those  who  profit  by  the  present 
conditions,  but  to  the  anger  of  the  people." 


THE   LAWYERS   AND   THE   COURTS  85 


XI 
Legal  Verbosity 

I  HAD  HOPED,"  said  I,  ''that  you  would  make  such  a 
declaration.  The  final  responsibility  rests  with  the 
people." 

''Certainly,"  replied  the  Ass.  "The  kind  of  laws,  the 
methods  of  procedure,  the  kind  of  judges  and  the  quaUty 
of  their  judgments  depend  in  the  end  on  the  people.  But 
they  expect  their  institutions  to  accomplish  the  work 
without  perpetual  tinkering  to  undo  the  wrongs  created 
by  interested  parties." 

"Let  us  consider  specifications,"  said  I.  "When  the 
changes  come  what  will  be  the  most  important  ones?" 

The  wise  old  Burro  chewed  a  mouthful  of  food  very 
slowly  and  then  flapped  his  lower  lip  gently,  as  if  the 
itching  of  it  were  to  him  the  most  important  thing  in 
the  world.  "I  think,"  he  said,  "that  the  most  attractive 
change  would  be  a  reduction  of  the  verbosity  of  legal 
documents.  The  language  used  in  them  typifies  as  well 
as  anything  else  the  intellectual  attitude  of  the  legal 
world.  The  hope  of  perfection  is  placed  in  verbosity. 
Every  rat-hole  of  expression  is  carefully  stuflfed  with 
mediaeval  words ;  and  then  each  rat-hole  and  the  nature 
of  the  stuffing  is  carefully  described. 

"I  might  say  to  you  that  last  night  just  before  the 
moon  went  down,  a  coyote  murdered  a  jack-rabbit  on 
the  broad  gravel  flat  near  the  mouth  of  Wild  Rose 
Canon.  You  would  understand  the  time,  place  and  na- 
ture of  the  act.    A  lawyer  would  say  the  same  thing  in 


86  THE   CASE   OF   THE   PEOPLE   AGAINST 

an  indictment  about  like  this :  'that  a  coyote,  known  vul- 
garly as  a  dog-like  burrowing  animal  or  prairie  wolf, 
and  in  scientific  terms  called  Canis  ochropus  estor,  being 
then  and  there  a  carnivorous  or  flesh-eating  animal,  and 
having  in  his  possession,  with  felonious  intent,  a  com- 
plete set  of  biting,  crunching  and  cutting  teeth  set  in  a 
pair  of  interacting  jaws  equipped  with  powerful  muscles, 
did,  at  about  the  hour  of  fifteen  minutes  past  three  a.m. 
(ante  meridian),  on  the  gravel  flat  at  or  near  the  wide, 
flat  lower  end  of  a  mountain  caiion  known  and  spoken 
of  as  Wild  Rose  Caiion,  in  full  moonlight,  wilfully,  fe- 
loniously, with  murderous  intent  and  malice  afore- 
thought, attack,  set  upon,  assault,  kill,  murder  and  do  to 
death  a  full  grown  jack-rabbit,  said  jack-rabbit  being 
then  and  there  a  male  rodent  of  the  genus  and  species 
Lepus  calif ornicus  deserticola;  that  the  said  coyote  did 
thus  set  upon,  assault,  kill,  slay  and  murder  the  said  jack- 
rabbit  at  the  aforementioned  time  and  place,  by  feloni- 
ously and  with  maHce  aforethought  seizing  the  said  jack- 
rabbit  by  the  rump  and  then  and  there  breaking  his  back 
and  his  neck  and  then  and  there  tearing,  rending,  chew- 
ing and  eating  up  the  said  jack-rabbit,  hair  and  all;  all 
of  which  is  contrary  to  the  law  for  such  cases  made  and 
provided  and  against  the  peace  and  dignity  of  the  species 
Lepus  calif  ornicus  deserticola;  and  to  the  great  harm 
and  destruction  of  the  said  rodent.'  All  the  redundancy 
is  a  clumsy  attempt  to  define  the  coyote,  the  rabbit  and 
the  act  of  murder.  There  has  been  no  enlightenment,  no 
additional  information." 

"Your  effort,"  said  I,  "is  mildly  humorous,  but  it  has 
all  the  ear-marks  of  gross  caricature.  It  is  more  reasona- 
ble to  suppose  that  the  careful  attention  to  detail  is  the 
result  of  long  experience  in  court  practice,  and  necessary 


THE   LAWYERS   AND   THE   COURTS  87 

in  order  to  avoid  trouble  later  in  the  prosecution  of  the 
case." 

"I  admit,"  said  the  Burro,  "that  it  is  a  gross  carica- 
ture of  the  reasonable  methods  of  sane  men;  but  that 
caricature  can  be  duplicated  from  the  solemn  court  rec- 
ords. The  worst  thing  about  it  is  that  it  shows  how  any 
attempt  to  attain  perfection  at  the  expense  of  simplicity 
and  directness  defeats  itself.  The  only  proof  needed  to 
show  that  such  methods  of  expression  are  unnecessary 
is  the  fact  that  at  least  in  recent  English  practice  and  in 
some  states  an  indictment  now  states  the  simple  fact. 
But  all  through  the  field  of  legal  documents  the  same 
characteristic  runs.  And  the  language  of  the  docu- 
ments is  only  the  written  part  of  the  mental  processes 
characteristic  of  lawyers  and  the  courts.  The  intent  is 
everywhere  apparently  to  shut  out  the  ordinary  play  of 
human   intelligence   by   definition,   objection,   repetition. 

"No  matter  what  part  of  the  system  is  examined  this 
same  desire  to  perfect  definition,  to  subdivide,  to  make 
minute  specifications,  ends  in  the  inevitable  result,  wor- 
ship of  words  and  forms  at  the  expense  of  judgment  and 
discretion.  Not  only  does  all  this  in  practice  infinitely 
multiply  the  dangers  of  error,  but  often  the  subdivisions 
of  classification  are  so  minute  that  no  one  can  tell  in 
what  pigeon-hole  a  given  thing  shall  be  put. 

"When  a  crooked  clerk  has  taken  money  by  manipu- 
lating a  check,  has  he  committed  larceny,  embezzlement, 
forged  a  check  or  issued  a  fictitious  check?  If  it  is 
merely  a  question  of  the  check,  has  he  forged  a  check  or 
issued  a  fictitious  one?  Suppose  he  is  charged  with  the 
latter.  He  proceeds  to  show  that  there  is  a  man  living 
with  the  name  he  used,  and  so  on.  Sometimes  neither 
court  nor  jury,  after  they  have  heard  the  evidence  and 


8»  THE   CASE   OF   THE   PEOPLE  AGAINST 

are  sure  that  the  man  is  guilty,  can  decide  exactly  what 
ought  to  be  done  because  of  the  minute  subdivisions 
made  by  the  law  and  appellate  decisions.  It  all  reminds 
me  of  the  problem  of  the  Yellowhammer.  In  the  East 
he  is  the  Golden-winged  Woodpecker;  but  in  the  West 
his  wings  are  red.  Maybe  they  are  different  species  or 
not.  It  depends  in  part  on  what  you  call  a  species  and 
in  part  on  the  particular  bird  you  happen  to  be  looking 
at.  I  once  saw  one  of  these  flickers  with  one  wing  scar- 
let and  the  other  yellow.  If  I  were  a  judge  or  a  jury- 
man I  would  have  to  give  it  up  as  a  bad  job.  I  would 
not  dare  to  convict  the  bird  of  being  anything.  But  be- 
ing only  a  common  Ass,  I  know  that  he  was  a  competent 
woodpecker,  guilty  of  both  the  red  and  yellow. 

"If  this  process  of  verbal  elaboration  at  the  expense 
of  sound  thought  and  action,"  said  I,  "is  itself  one  of  the 
normal  processes  of  human  development,  it  is  hardly  a 
matter  to  scold  about  but  a  thing  to  be  studied  for  its 
own  intrinsic  interest." 

The  Ass  repUed,  "As  an  academic  subject  of  study 
it  has  great  intrinsic  interest ;  but  in  practical  life  things 
that  seem  of  small  significance  are  often  fatal.  The 
struggle  is  tense,  and  small  handicaps  often  destroy  all 
chances  of  success.  They  act  Hke  a  strong  brake  that 
clutches  the  hind  wheels  of  a  heavy  load.  The  four 
mules  at  the  front  of  the  wagon  know  that  they  are 
working  hard;  and  everywhere  from  the  ears  of  the 
leaders  to  the  king-bolt  there  is  much  action,  but  the  load 
does  not  move." 


THE   LAWYERS   AND   THE   COURTS  89 


XII 

The  Unanimous  Jury 

I  MADE  a  suggestion.  "Suppose  we  consider  some  one 
line  along  which  there  has  been  unwholesome  devel- 
opment. There  is  bound  to  be  friction  in  the  appli- 
cation of  any  set  of  principles,  and  this  would  be  espe- 
cially true  where  the  nature  of  the  matters  dealt  with 
requires  exactness." 

Said  the  Ass,  "Let  us  take  the  most  sacred  institu- 
tion in  Anglo-Saxon  history,  the  bulwark  of  personal 
liberty,  the  strong  guard  of  the  helpless,  the  hope  of  the 
innocent — the  Jury.  What  is  the  feeling  of  the  Ameri- 
can people  toward  the  jury?  Is  it  not  the  settled  con- 
viction of  the  people  that  the  jury  is  the  last  and  best 
bulwark  of  the  wrong-doer?  In  practice  the  innocent 
are  often  willing  to  leave  their  fate  to  the  judge,  while 
the  guilty,  if  they  fight  at  all,  invariably  demand  a  jury 
trial.  Likewise  in  civil  cases  the  man  with  justice  on 
his  side  is  willing  to  go  to  trial  without  a  jury.  And 
among  sensible  men  there  is  an  intense  dislike  for  jury 
service.  It  is  merely  another  way  of  stating  the  univer- 
sal unwillingness  to  be  subjected  to  frivolous,  searching, 
irrelevant  questions  in  jury  selection,  the  unnecessarily 
long  and  tiresome  trial  stage  and  the  final  crucial  con- 
test of  intelligence  against  stupidity  or  even  crookedness 
in  the  jury  room.  Not  alone  the  laymen  condemn  it. 
The  most  hostile  judgment  comes  from  men  high  in  the 
legal  profession. 

"It  is  out  of  harmony  with  the  needs  of  the  time; 


90  THE   CASE   OF   THE   PEOPLE   AGAINST 


and  this  lack  of  harmony  is  due,  not  alone  to  any  recent 
changes  in  the  jury,  but  to  the  fact  that  it  has  long  in 
many  ways  remained  unchanged  while  nearly  all  other 
social  and  political  institutions  have  undergone  profound 
changes.     There  can  be  no  historical  argument  against 
changing  the  method  of  selecting  the  jury  because  in 
its   early   history   it   underwent   many   radical   changes. 
Not  more  than  six  hundred  years  ago  the  twelve  men 
that   formed  the  jury  were   sworn  witnesses.     At   one 
time,  if  the  twelve  could  not  agree  on  the  facts,  others 
were   added   until    there    were   twelve   that   did    agree. 
From  that  simple,  effective  and  flexible  method  of  get- 
ting a  decision  has  developed  the  slow,  uncertain  jury 
system  of  today.     Now  the  juryman  must  not  only  not 
have  been  a  witness  to  the  facts,  but  he  must  not  have 
formed  a  definite  opinion  on  the  merits  of  the  case.    The 
net  result  of  the  changes  that  have  come  over  Anglo- 
Saxon  civilization  is  that  the  jury  has  become  a  very  ex- 
pensive means  of  dealing  out  justice  in  small  cases  and 
a  very  uncertain  and  dangerous  one  in  important  cases. 
"When  the  juryman  was  a  witness  he  was  selected 
from   the   neighborhood   of   the   action.     Now   he   must 
still  be   from  the  general  neighborhood,  and  the  men 
best  fitted  for  the  service  are  all  likely  to  be  famiHar 
with  the  facts.     This  makes  the  selection  of  a  jury  in 
important  cases  a  matter  of  extreme  delicacy  and  dif- 
ficulty.    Certain  whole  classes  of  men,  all  of  them  spe- 
cially qualified  to  weigh  evidence,  are  exempt  from  jury 
service.    The  judge  can  excuse  from  service  those  who 
can  give  good  excuses ;  and  one  only  needs  to  watch  the 
line  of  citizens  who  make  successful  excuses  to  realize 
that  the  most  effective  men  get  off  most  often.    In  many 
states  either  side  may  reject  a  juror  if  he  is  not  on  the 


THE   LAWYERS   AND   THE   COURTS  91 

assessment  roll.  Under  present  conditions  what  earthly 
relation  has  this  to  a  juror's  efficiency?  The  fact  is  ig- 
nored in  practice  and  is  used  only  to  get  rid  of  a  tnan 
toward  whom  one  side  or  the  other  holds  objections  too 
vague  to  be  otherwise  enforced. 

"Under  the  present  trying  conditions  the  best  men 
will  do  anything  except  commit  perjury  to  escape  jury 
service.  Almost  the  only  man  who  does  not  protest 
against  serving  is  the  professional  juryman,  the  Jack-in- 
the-Jury-Box,  who, is  perforce  a  man  without  a  regular 
calling,  a  floater  on  the  sea  of  circumstance,  the  least 
certain  of  all  men  in  his  moral  convictions  and  most  sus- 
ceptible to  influences  of  an  improper  kind.  Out  in  the 
world  he  only  clings  to  the  hem  of  civilized  society,  but 
in  the  jury  room  he  cannot  be  overridden.  Where  the 
jury's  verdict  has  to  be  unanimous  he  is  equal  in  strength 
to  his  eleven  colleagues  together.  If  he  has  any  moral 
defects  or  mental  twists  or  evil  purposes  he  cannot  be 
coerced.  He  does  not  even  have  to  give  any  reasons  for 
his  attitude  if  he  does  not  wish  to  do  so. 

"In  the  struggle  to  get  a  jury  there  is  a  constant  pro- 
cession of  capable  men  out  of  the  jury-box  and  tremen- 
dous effort  to  prevent  the  dismissal  of  unworthy  men. 
By  the  time  a  jury  is  selected  weariness  and  disgust  are 
already  sitting  in  the  box  with  the  jury.  It  is  not  un- 
common, even  in  a  justice  court,  and  in  civil  cases  in- 
volving not  more  than  $ioo,  that  the  court  uses  up  a 
day  and  the  time  of  a  roomful  of  men  to  get  a  jury.  To 
one  familiar  with  the  practice  in  the  United  States  the 
declaration  of  an  eminent  Canadian  judge  that  he  never 
saw  it  take  more  than  half  an  hour  to  select  a  jury  is  so 
startling  as  to  be  practically  incredible.  All  this  tremen- 
dous waste  of  energy  has  no  relation  to  the  quality  of 


92  THE   CASE   OF   THE    PEOPLE   AGAINST 

justice;  it  is  necessary  only  because  the  rules  make  it  so. 

''But  the  most  serious  factor  of  the  jury  system  is 
the  moral  uncertainty  and  strain  due  to  the  unanimous 
verdict.  In  some  states  there  has  been  a  belated  recog- 
nition of  this  difficulty  and,  as  in  California,  three- 
fourths  of  the  jury  can  render  a  verdict  in  civil  cases. 
The  very  fact  that  jury  service  calls  for  intelligence  and 
good  judgment  and  integrity  should  of  itself  be  fatal  to 
the  doctrine  of  the  unanimous  verdict.  Even  twelve 
reasonable  men  are  likely  to  disagree,  and  the  verdict  is 
very  commonly  brought  about  by  breaking  down  the 
judgment  of  one  or  more  of  the  jurors.  But  under  the 
present  rules  for  the  selection  of  the  jury  there  is  a  very 
great  likelihood  that  one  or  more  will  prove  themselves 
incompetent  after  the  jury  is  locked  up.  The  compro- 
mise judgments  in  civil  cases  and  the  recommendations 
to  the  extreme  mercy  of  the  court  in  criminal  cases  are 
quite  commonly  due  to  the  necessity  of  placating  some 
juryman,  who  first  after  they  are  locked  up  reveals  his 
prejudice  or  inefficiency  or  his  unwillingness  to  abide 
by  the  instructions  of  the  court. 

"The  unanimous  verdict  makes  it  almost  impossible 
to  enforce  laws  against  which  there  is  any  sort  of  oppo- 
sition. The  clumsiness  of  jury  selection,  its  delay  and 
cost,  and  the  great  uncertainty  of  its  decisions  make  the 
jury  as  an  institution  almost  a  complete  protection  to 
criminals  in  certain  classes  of  crimes.  When  the  poUce 
in  large  cities  make  raids  on  gambling  and  disorderly 
houses  and  capture  large  numbers  of  persons  who  have 
violated  the  law  it  is  a  well  recognized  practice  for  every 
one  of  them  to  demand  a  jury  trial,  with  the  result  that 
the  courts  are  clogged  with  the  cases.  The  uncertainty 
of  securing  convictions  coupled  with  the  Herculean  la- 


THE   LAWYERS   AND   THE   COURTS  93 

bors  compels  the  court  to  compromise  with  the  criminals 
and  agree  to  inflict  very  light  punishment  in  the  form  of 
a  nominal  fine  if  they  will  plead  guilty.  This  in  turn  re- 
acts by  creating  contempt  for  law  among  criminals  and 
a  feeling  on  the  part  of  police  officers  that  it  is  not  worth 
while  to  make  arrests." 

I  reminded  my  friend  the  Ass  that  jury  action  was 
specially  intended  to  eliminate  all  doubtful  cases,  and  for' 
that  reason  a  unanimous  verdict  of  twelve  men  with  dif- 
ferent points  of  view,  training  and  experience  seemed  an 
ideal  method  of  separating  justice  from  cruelty  and  cap- 
rice. But  he  promptly  attacked  the  whole  theory  of  un- 
animity, slipping  in  another  illustration  as  an  argument. 
He  said : 

"A  more  nearly  unanimous  vote  can  be  secured  when 
men  are  swayed  by  their  emotions  than  when  they  are 
governed  by  their  reason,  because  the  feelings  are  more 
surely  touched  than  the  reason  can  be  convinced.  In 
August,  1905,  the  Norwegian  people  voted  on  the  question 
whether  they  should  remain  in  the  Union  with  Sweden 
or  become  entirely  independent  of  the  Swedes  and  the 
house  of  Bernadotte.  Out  of  a  vote  of  over  321,000  only 
161  were  cast  against  independence.  The  majority  was 
2,000  to  I  in  favor  of  freedom. 

"Had  they  been  asked  to  decide  by  vote  whether  or 
not  their  country  is  cold,  there  would  have  been  far 
^fcater  disagreement,  because  it  would  be  a  question  of 
e^ence.  Most  of  them  might  vote  that  it  is  cold ;  but 
when  the  snow  goes  off  and  the  ice  goes  out  of  the  fiords 
and  the  sheep  and  cattle  move  into  the  mountains  and 
the  country  is  sun-kissed  above  almost  any  other  land  on 
earth,  who  then  among  them  would  vote  that  his  country 
is  cold?     The  evidence  of  their  own  senses  would  be 


94  THE   CASE   OF   THE   PEOPLE   AGAINST 

against  them.  A  reliable  judgment  would  require  the 
weighing  of  evidence,  the  balancing  of  facts  against  each 
other,  and  a  general  knowledge  of  world  conditions. 
Tens  of  thousands  would  vote  their  conviction  that  Nor- 
way is  an  ideal  country,  and  cold  only  to  the  thin-blooded, 
frost-bitten  weaklings  of  other  countries. 

In  other  affairs  of  men  a  majority  of  two  thirds  is 
regarded  as  striking  proof  that  the  facts  are  plain  and 
the  arguments  convincing;  and  that  the  minority  is  ac- 
tuated by  reasons  and  motives  that  have  no  direct  bear- 
ing on  the  principal  issue.  When  the  question  at  issue 
is  one  of  great  importance,  the  small  minority  is  largely 
composed  of  a  residuum  of  voters,  doubtless  honest,  but 
either  prejudiced,  or  unfit  by  nature  or  training  to  form 
independent  judgments,  or  of  vacillating  minds  that  can- 
not keep  a  steady  course  but  veer  with  every  breath  of 
opinion.  As  you  approach  unanimity  the  little  minority 
more  and  more  clearly  takes  on  this  special  character  of 
an  irreducible  element  that  is  insoluble  in  normal  reason 
and  feeling. 

"There  is  an  interesting  discussion  of  the  principle  of 
unanimity  in  the  Federalist.  Hamilton  voiced  the  recent 
and  bitter  experience  through  which  the  Confederation 
had  gone.  When  he  came  to  the  old  rule  that  required 
the  vote  of  nine  of  the  thirteen  colonies  to  carry  any  im- 
portant matter  he  said,  'A  rule  destructive  of  vigor,  con- 
sistency or  expedition  .  .  .  must  always  make  the  spirit 
of  government  a  spirit  of  compromise  and  expedience, 
rather  than  of  system  and  energy.'  In  another  place  he 
said,  'the  necessity  of  unanimity  in  public  bodies  or  of 
something  approaching  towards  it,  has  been  founded  upon 
a  supposition  that  it  would  contribute  toward  security,' 
but  he  showed  that  the  resuhs  are  the  reverse  of  what 
was  expected." 


THE   LAWYERS   AND   THE   COURTS  95 

I  interrupted  him  to  say  that  Hamihon  was  dealing 
with  questions  of  future  public  policy,  in  which  there  is 
always  legitimate  difference  of  opinion;  while  the  jury 
is  expected  to  deal  only  with  thoroughly  established  his- 
torical facts. 

"Evidence,"  he  replied,  "even  as  it  is  presented  to  ju- 
ries, is  not  the  simple  thing  it  is  supposed  to  be,  but  in- 
volves the  same  qualities  of  probability  as  the  facts  on 
which  men  in  the  outside  world  base  their  judgments. 
What  Hamilton  said  of  the  principle  of  unanimity  in  po- 
litical history  is  true  as  it  is  applied  to  the  jury.  The 
history  of  every  political  establishment  in  which  the  prin- 
ciple has  prevailed  is  a  history  of  impotence,  perplexity 
and  disorder.' 

"There  is  a  curiously  false  assumption  in  the  suppo- 
sition that  present  methods  of  selecting  the  jury  eUm- 
inate  the  usual  elements  of  moral  and  intellectual  uncer- 
tainty. The  chances  of  securing  a  mistrial  or  a  compro- 
mise verdict  are  so  great  that  as  one  who  is  himself  a 
great  jurist  said,  'lawyers  almost  invariably  seek  jury 
trials  in  causes  which  they  regard  as  doubtful,  and  shun 
them  in  causes  which  they  regard  as  strong.'  One  of 
the  most  nearly  indefinable  and  yet  one  of  the  most  pow- 
erful circumstances  that  brings  undesirable  elements  into 
the  jury  in  spite  of  the  most  careful  application  of  for- 
mal rules  of  selection,  is  the  fact  that  the  ordinary  mind 
is  under  severe  constraint  while  undergoing  examination 
for  fitness  as  a  juror.  He  does  not  need  to  be  dishonest 
to  deceive  both  himself  and  his  examiners  as  to  what  he 
will  do  about  evidence  that  he  has  not  yet  heard.  This 
constraint  in  a  large  measure  continues  through  the 
trial.  When  he  enters  the  jury  room,  especially  after  a 
long,  hard  trial,  there  is  a  tremendous  reaction  of  wilful- 


96  THE   CASE   OF   THE    PEOPLE   AGAINST 

ness.  For  the  first  time  he  is  at  liberty  to  break  loose 
mentally;  and  whether  it  is  pleasant  to  consider  or  not, 
it  is  an  unfavorable  time  for  the  exercise  of  calm  judg- 
ment. For  very  many  men,  it  is  the  time  when  individ- 
ual peculiarities  of  mind  and  opinion,  instead  of  being 
subdued,  break  out  almost  resentfully.  This,  while  not 
true  of  all  men  is  true  of  so  many  that  the  unanimous 
verdict  is  one  sure  way  to  avoid  justice.  But  being  only 
a  common  ass,  I  merely  recommend  the  mind  of  the 
juryman  to  the  practical  psychologists  as  a  most  inter- 
esting subject  for  practical  study. 

"Ex-President  Taft,  who  was  himself  a  federal  judge 
before  he  was  President,  in  an  address  to  the  graduating 
class  of  the  Yale  Law  School  in  June  1905  summed  up 
in  a  few  simple,  stinging  sentences  the  condition  of  your 
judicial  procedure.  He  said,  *It  is  by  no  means  clear 
that  in  our  jurisprudence  trial  by  jury  in  civil  cases  is  an 
unmixed  good.  ...  I  grieve  for  my  country  to  say 
that  the  administration  of  criminal  law  in  all  the  states 
of  the  Union  (there  may  be  one  or  two  exceptions),  is  a 
disgrace  to  our  civilization.'  He  explained  that  the  dif- 
ference in  efficiency  between  this  country  and  England 
is  due  to  the  fact  that  in  England  the  judge  is  a  real 
judge,  who  has  complete  control  of  the  case;  and  after 
the  conviction  there  is  no  appeal  in  criminal  cases  unless 
the  judge  himself  wants  certain  questions  of  law  passed 
upon  by  the  higher  court.  He  said  further.  The  insti- 
tution of  trial  by  jury  has  come  to  be  regarded  as  a  fetish 
to  such  an  extent  that  state  legislatures  have  exalted  the 
power  of  the  jury  and  diminished  the  power  of  the  court 
in  the  hearing  of  criminal  cases.  The  function  of  the 
judge  is  limited  to  that  of  the  moderator  in  a  religious 
assembly.     The  counsel  for  the  defense,  relying  on  the 


THE   LAWYERS   AND   THE   COURTS  97 

diminished  power  of  the  court,  creates  by  dramatic  art 
and  harping  on  the  importance  of  unimportant  details, 
a  false  atmosphere  in  the  court  room  which  the  judge  is 
powerless  to  dispel  and  under  the  hypnotic  influence  of 
which  the  counsel  is  able  to  lead  the  jurors  to  vote  as 
jurors  for  a  verdict  which,  after  all  the  excitement  of  the 
trial  has  passed  away,  they  are  unable  to  support  as  men/ 
Taft  believed  that  the  enormous  increase  in  crime  is 
traceable  to  the  inefficiency  of  criminal  procedure,,  and 
said,  'Murder  is  on  the  increase  and  so  are  all  offenses 
of  the  felony  class,  and  there  can  be  no  doubt  that  they 
will  continue  to  increase  unless  the  criminal  laws  are  en- 
forced with  more  certainty,  more  uniformity,  more. se- 
verity than  they  are  now.'  Did  you  know  that  there 
were  nearly  132,000  murders  and  homicides  in  the  Unit- 
ed States  in  the  twenty  years  1885-1905?  If  the  slaugh- 
ter, instead  of  being  indiscriminate,  had  been  confined  to 
lawyers,  there  would  not  be  a  lawyer  left  in  the  country." 
We  agreed  to  adjourn  with  the  understanding  that 
His  Highness  would  receive  me  later  in  the  day  if  I 
chose  to  seek  him  out,  and  if  he  had  nothing  more  im- 
portant on  his  mind. 


98  THE   CASE   OF   THE    PEOPLE   AGAINST 


XIII 
Jury  Stories 

I  FOUND  him  late  in  the  afternoon  at  a  Uttle  spring, 
where  he  and  another  burro  were  deHcately  nipping 
each  other  on  the  shoulders.  I  sought  to  have  him 
devise  changes  in  the  jury  system  that  would  do  away 
with  the  objections  which  he  and  Taft  had  raised  against 
it.  But  his  mind  had  become  too  playful  to  work  so 
hard,  and  he  began  to  tell  stories  about  the  performances 
of  juries.    Among  the  tales  he  told  were  the  following: 

"A  juror  in  KaUspell,  Montana,  accepted  a  bribe  to 
influence  his  action  in  a  murder  case.  He  stood  out  alone 
against  the  other  eleven  and  forced  a  disagreement.  But 
he  bragged  about  it  to  his  wife.  Even  that  would  have 
caused  him  no  trouble  because  a  wife  cannot  testify 
against  her  husband  in  a  criminal  action.  But  she  got 
a  divorce  from  him;  and  that  made  her  a  competent 
witness.  She  testified  against  him  and  he  was  undone; 
he  was  found  guilty  and  sent  to  the  penitentiary  for  two 
years  for  taking  a  bribe.  But  for  every  juror  that  brags 
and  then  is  divorced  there  are  a  good  many  that  hold 
their  tongues.  All  the  public  ever  knows  is  that  there 
has  been  a  disagreement  and  that  the  unanimous  verdict 
is  a  serious  matter. 

"In  1905  a  jury  in  Oakand,  California,  after  seven 
hours  of  deliberation,  brought  in  a  verdict  of  'not  guilty' 
in  the  case  of  a  man  charged  with  embezzlement  of  his 
employer's  funds.  The  public  has  no  right  to  know  what 
goes  on  in  the  jury  room,  but  even  American  good  na- 


THE   LAWYERS   AND   THE   COURTS  99 


ture  sometimes  revolts,  and  after  the  trial  it  transpired 
that  the  jury  had  stood  eleven  for  conviction  and  one  for 
acquittal.  The  twelfth  man  could  not  understand  a 
point  of  law  and  the  other  eleven  spent  the  seven  hours 
explaining  it  to  him.  He  would  not  yield,  so  they,  being 
sensible  men,  and  knowing  that  a  disagreement  of  the 
jury  would  mean  a  new  trial  and  a  heavy  burden  on  the 
public  treasury  without  any  assurance  of  a  better  result, 
settled  the  matter  for  good  by  bringing  in  a  verdict  of 
acquittal. 

'Tn  Reno,  Nevada,  after  being  out  sixty-four  hours 
and  standing  eleven  for  conviction  of  murder  in  the  sec- 
ond degree  and  one  for  acquittal,  a  jury  was  discharged 
from  custody.  The  twelfth  man  claimed  that  he  had 
learned  by  inspiration  from  God  that  the  defendant  was 
innocent." 

"Your  cases,"  said  I,  "are  all  from  the  wild  West. 
Perhaps  east  of  the  Rockies  the  juries  are  less  freakish." 

"Very  well,"  said  the  desert  Burro,  "I  speak  so  much 
of  the  West  because  I  love  it  over  much.  The  air  is  dry 
and  there  is  a  fine  spirit  of  fair  play  that  one  would  think 
is  the  best  foundation  for  a  sound  system  of  justice.  But 
let  us  take  Minnesota.  It  is  cold  enough  there  to  make 
the  blood  bound  freely.  The  people  are  all  of  cold  tem- 
perate origin,  not  given  to  violence  of  feeling,  but  gifted 
with  the  power  to  act  together.  The  population  is  great- 
ly mixed,  so  that  there  has  been  a  great  grinding  of 
ideas  and  a  steady  forward  look. 

"Mayor  Albert  A.  Ames  of  MinneapoHs  had  during 
his  term  of  office  corrupted  men  high  and  low  in  city 
poHtics,  violated  every  rule  of  honor  by  which  decent 
men  control  themselves  and  judge  their  fellow-men,  and 
debased  his  beautiful  city  to  a  condition  of  moral  un- 


100  THE   CASE   OF   THE    PEOPLE   AGAINST 

cleanness  that  made  her  an  object  of  derision  to  her  sis- 
ters in  the  Mississippi  Valley.  The  worm  turned  at  last. 
He  was  driven  out  of  office,  brought  to  trial  for  corrup- 
tion, and  convicted.  He  appealed  the  case  and  the  Su- 
preme Court  of  the  state  reversed  the  lower  court  on  a 
technicaUty.  Then  began  a  famous  legal  chase  for  re- 
sults. He  had  in  all  five  trials.  Once  he  ran  away  to 
Vermont.    The  question  of  his  sanity  was  raised. 

"Convicted  at  the  first  trial,  the  Supreme  Court 
granted  a  new  trial.  The  second  trial  ended  in  a  disa- 
greement of  the  jury;  the  third  trial  also  ended  in  a  dis- 
agreement. In  this  third  trial  the  defendant  owed  the 
result  to  one  juror,  who  stood  by  him  for  sixty-nine 
hours  and  refused  to  let  the  eleven  other  men  vote  Ames 
into  the  penitentiary.  Those  eleven  had  voted  for  con- 
viction from  the  first.  The  fourth  and  fifth  trials  ended 
in  disagreements.  Then  the  test  of  endurance  was  com- 
pleted. The  county  attorney  moved  that  all  the  indict- 
ments against  the  defendant  for  bribery  and  corruption 
be  dismissed,  and  the  district  judge  granted  the  motion. 
Exhaustion,  not  justice,  had  triumphed.  Ames  was  a 
free  man;  and  the  record  of  his  public  career  will  be  a 
purple  blotch  on  the  city's  fame  for  years  to  come." 

I  was  attracted  by  the  human  interest  of  his  stories, 
but  suggested  that  it  is  generally  admitted  that  the  state 
courts  are  less  effective  than  the  federal  courts  and  that 
perhaps  federal  juries  might  well  be  imitated  by  the  state 
juries.    The  suggestion  roused  my  friend  the  Ass. 

"Oh,  yes,"  he  said,  "they  are  just  enough  better  to 
show  clearly  how  much  they  both  need  improving.  Dur- 
ing 1904  and  1905  enormous  frauds  in  connection  with 
the  private  acquisition  of  public  lands  were  unearthed 
in  several  of  the  western  states,  notably  in  California, 


THE   LAWYERS   AND   THE   COURT^Sf . .  *  V  '',*• ! ''.  i'-ilbl' 


Oregon  and  Montana.  Among  those  prosecuted  was  a 
man  who  had  tried  to  bribe  a  former  United  States  dis- 
trict attorney  to  hush  up  the  land  fraud  cases  in  Oregon. 
The  trial  was  a  long  and  very  careful  one;  but  the  jury, 
after  being  out  a  long  while  reported  that  it  could  not 
reach  an  agreement.  They  stood  ten  for  conviction  and 
two  for  acquittal.  When  the  presiding  United  States 
district  judge  dismissed  the  jury  he  stated  the  merits  of 
the  case  and  called  the  attention  of  the  prosecuting  at- 
torney to  the  fact  that  the  jury  had  disagreed  in  the  face 
of  evidence  that  warranted  but  one  verdict,  and  that  was 
conviction.  He  urged  the  district  attorney  to  summon 
the  members  of  the  jury  before  the  federal  grand  jury 
in  order  that  a  thorough  investigation  might  be  made. 
Two  of  the  jurors  were  friends  of  the  defendant. 

^'Several  other  important- trials  were  held  in  Oregon 
in  connection  with  the  same  series  of  land  frauds.  A 
jury  did  convict  one  man,  a  United  States  senator,  but 
recommended  him  to  the  mercy  of  the  court.  He  had 
celebrated  his  seventieth  birthday  during  the  trial,  and 
out  of  consideration  for  his  great  age  the  presiding 
judge  imposed  the  light  penalty  of  $i,ooo  fine  and  six 
months  imprisonment.  He  appealed  the  case  to  the  Su- 
preme Court  of  the  United  States,  went  on  drawing  his 
salary  as  senator,  and  died  without  serving  any  part  of 
the  sentence  or  paying  the  fine. 

'*A  representative  in  Congress,  and  ly^  partner  in  the 
sheep  business,  and  a  United  States  land  commissioner 
were  put  on  trial  for  subornation  of  perjury  in  the  same 
series  of  frauds."  The  trial  lasted  two  weeks.  The  jury 
was  out  forty-six  hours  and  took^rty-two  ballots,  and 
stood  ten  for  conviction  and  two  for  acquittal.  The  two 
stubborn    jurymen    who    voted    so    persistently    against 


1G2  THE   CASE   OF   THE    PEOPLE   AGAINST 


conviction  offered  to  vote  the  other  two  defendants 
guilty  if  the  rest  of  the  jury  would  vote  for  the  acquittal 
of  the  Congressman.  Stop  long  enough  to  consider 
carefully  this  proposition  in  all  its  bearings.  The  case 
was  tried  three  times.  The  Oregon  Congressman  was 
found  guilty;  but  he  appealed  the  case,  and  the  stars 
alone  can  tell  what  finally  became  of  it. 

*'A  calm  analysis  of  the  results  in  this  series  of  cases 
puts  in  a  pitiable  light  the  desperate  efforts  of  the  gov- 
ernment of  the  United  States  to  convict  a  crowd  of 
thieves  whose  guilt  was  patent  to  all  the  rest  of  the 
world.  At  one  stage  of  the  work,  after  many  months 
of  the  most  strenuous  effort  on  the  part  of  many  capa- 
ble public  servants,  and  the  expenditure  of  tens  of 
thousands  of  dollars,  the  record  showed  the  conviction 
of  one  old  man,  with  a  petty  sentence  hanging  over  him 
which  the  law  of  probability  indicated  beforehand  would 
never  be  executed.  In  this  series  the  cases  were  all  im- 
portant, the  evidence  was  good,  the  prosecution  was  vig- 
orous, the  judges  w^ere  as  able  as  any  in  the  country,  and 
the  conditions  in  the  government  land  business  at  that 
time  required  drastic  measures  to  set  matters  right. 
There  was  no  special  reason  why  the  results  should  have 
been  what  they  were  except  that  the  defense  was  able  and 
powerful,  and  fought  hard. 

"Many  other  important  prosecutions  were  underta- 
ken by  the  general  government  against  individuals  and 
corporations  at  about  this  time  and  as  a  rule  the  trials 
revealed  the  same  general  characteristics  as  those  I  have 
been  talking  about.  They  show  what  a  great  and  pow- 
erful government  cannot  do — bring  guilty  men  to 
prompt  and  adequate  punishment  when  those  men  are  in 
a  position  to  make  a  vigorous  fight  to  prevent  it." 


THE   LAWYERS   AND   THE   COURTS  103 

I  asked,  "Why  are  you  so  greatly  interested  in  cases  ? 
They  are  interesting,  but  difficulties  in  detail  are  bound 
to  occur  in  so  great  a  system." 

He  looked  at  me  with  a  smile  of  sympathy  and 
flavored  his  words  with  a  tone  of  sarcasm.  Why  should 
not  an  Ass  make  a  careful  study  of  cases  in  order  to  de- 
cide what  to  do  next?  Lawyers  do  it,  judges  do  it.  In 
fact  the  whole  system  of  judicial  philosophy  is  now  la- 
boring under  an  endlessly  increasing  collection  of  cases. 
Because  not  all  jury  cases  reveal  the  traits  that  I  have 
described  is  no  argument  against  my  position.  The 
comparatively  few  jury  cases  that  are  commendable 
only  make  the  general  darkness  visible. 

"The  cases  I  have  given  fairly  typify  the  workings 
of  the  jury  system.  But  the  most  grievous  thing  about 
it  all  is,  not  that  now  and  then  the  results  are  so  foolish 
as  to  startle  the  public,  but  that  the  products  of  the  sys- 
tem as  a  whole  constitute  so  poor  a  quality  of  perform- 
ance. In  my  asinine  opinion  the  gravest  result  is  not  the 
large  number  of  miscarriages  of  justice  and  the  enor- 
mous friction,  cost  and  delay,  but  the  general  conclu- 
sion about  justice  which  the  American  people  have  ar- 
rived at.  Both  the  increase  of  crime  and  the  growing 
indifference  to  the  enforcement  of  law  have  doubtless 
been  due  to  the  feeling  that  law  cannot  be  enforced. 
And  in  its  present  form  the  jury  contributes  largely  to 
the  demoralizing  result." 

"But  do  you  not  think,"  said  I,  "that  there  is  a  faint 
light  on  the  horizon?  In  some  states  the  law  now  pro- 
vides for  verdicts  by  four-fifths  or  five-sixths  of  the 
jury.     What  have  these  slight  changes  accomplished?" 

"Wonders,"  said  the  Burro.  "The  interests  of  jus- 
tice have  been  fully  protected,  the  baneful  power  of  a 


104  THE   CASE   OF   THE    PEOPLE   AGAINST 

single  unjust  juror  has  been  crushed,  the  chances  of 
successful  bribery  have  been  greatly  diminished,  and  the 
tendency  to  unanimous  agreement  has  actually  been  in- 
creased. This  last  result  is  due  to  the  fact  that  men  of 
weak  or  warped  or  ill-trained  intellect,  when  honest, 
do  not  wish  to  be  left  out  in  the  cold,  and  more  readily 
join  their  comrades  in  a  verdict.  When  the  unanimous 
verdict  is  forever  done  away  in  the  interest  of  common 
sense,  it  will  be  possible  for  the  jury  to  express  the  sen- 
timent of  the  community  without  first  bowing  the  knee 
to  the  forces  of  evil  and  stupidity." 

The  last  interviews  left  me  in  a  state  of  depression. 
Dynamiting  at  the  foundations  of  one's  convictions, 
sweeping  assaults  on  forms  and  principles  to  which  the 
mind  has  been  accustomed  from  childhood  and  to  which 
it  always  reverts  in  times  of  distress,  are  likely  to  create 
mental  anxiety.  The  Anglo-Saxon  method  of  dealing 
out  justice,  of  giving  every  man  what  is  coming  to  him, 
seemed  to  me  the  best  that  could  be  devised,  even  with 
all  its  admissible  faults,  because  it  had  been  worked  out 
in  a  long  struggle  for  personal  rights,  by  a  people  gifted 
with  practical  sense,  and  with  infinite  care.  The  more 
theoretical  and  complete  the  criticism,  the  less  likely,  it 
seemed  to  me,  would  it  stand  up  under  the  test  of  prac- 
tice. But  instead  of  devising  a  counter-attack,  I  retired 
from  the  scene. 


THE   LAWYERS   AND   THE   COURTS  105 


XIV 
A  Successful  Revolt  in  California 

NEXT  MORNING  long  before  the  sun  began  to  warm 
the  western  slopes,  I  cHmbed  out  of  the  canon  to 
the  top  of  the  Panamint  Range.  The  spiritual 
pulse  bounds  vigorously  when  the  legs  are  doing  uphill 
work ;  and  I  strongly  recommend,  as  a  result  of  my  ex- 
perience, that  the  defeated,  mentally  exhausted,  spiritual- 
ly dejected,  let  their  minds  alone  and  work  their  legs  up- 
hill a  mile  or  two  skyward.  This  flanking  movement  will 
rout  the  most  stubborn  depression.  By  the  time  I  had 
reached  the  broad  area  north  of  Baldy  the  warm  October 
sun  had  prepared  a  time  for  sleep.  I  lay  for  an  hour, 
dozing  and  brooding  lightly  on  the  general  futility  of 
human  institutions.  The  God-made  things,  the  peaks 
with  their  snow-caps,  Death  Valley  with  its  quivering 
heat,  the  trickling  water  and  the  burning  sancj,  the  cloud- 
bursts in  the  mountains  and  the  dust  clouds  in  the  deserts, 
these  help  to  set  new  standards  of  value.  None  of  these 
ever  submit  kindly  to  criticism,  but  are  great  feeders  of 
contemplation.  The  critic's  place  in  nature  looked  piti- 
fully small  from  up  there.  Both  spiritual  and  physical 
weariness  oozed  out  of  my  legs  while  I  lolled  in  sleepy 
comfort;  and  took  in  great  courage  through  the  lungs. 
I  wondered  why  it  might  not  just  as  well  be  everlasting. 
I  rose  and  stretched  myself,  and  climbed  to  the  top  of 
Telescope  Peak.  On  my  left  was  the  deadly  heat  of 
Death  Valley  and  on  my  right  the  deadly  cold  of  Mount 
Whitney,  both  within  easy  range  of  the  eyes.     I  felt  equal 


106  THE   CASE   OF   THE    PEOPLE   AGAINST 

to  it  all.  Here  I  plotted  the  undoing  of  the  Ass.  I  would 
seek  him  again  and  ask  him  to  furnish  the  specifications 
for  some  constructive  plan  by  which  the  American  people 
could  get  prompt,  cheap,  and  effective  justice. 

After  an  hour  of  world-gazing  from  the  top  of  Tele- 
scope, I  ploughed  southward  through  the  sHding  shale 
on  the  southern  slope  of  that'  desert  chief.  GrowUng 
shale,  laborious  snow-fields,  clinking  plates  and  thunder- 
ing blocks  of  rock,  and  contentious  mountain  shrubs  all 
gave  me  work  to  do  on  the  long  southward  drop  into 
old,  deserted  Panamint. 

After  a  day's  rest  I  gathered  up  my  scant  equipment 
and  put  it  on  the  little  black  burro,  which  made  no  com- 
plaint about  her  burdens  and  cared  nothing  for  our  intel- 
lectual doings.  I  was  going  to  leave  the  desert.  When  I 
got  back  to  Wild  Rose  I  learned  from  the  Indians  that 
when  last  seen  the  band  of  burros  was  headed  north, 
gathering  numbers  as  it  went.  I  assumed  that  Emigrant 
Springs  would  be  their  next  stamping  ground ;  and  that 
night  I  found  them  at  the  iron  water  trough  at  the  lower 
Emigrant  Spring,  munching  stray  bits  of  straw  and  pick- 
ing up  scattered  barley  kernels  that  some  hard-working 
burro  had  not  had  time  to  finish  before  his  pack  was  put 
on. 

I  finally  came  upon  the  Ass  the  next  morning  high 
up  on  the  flank  of  Pinto  Peak.  He  gave  me  a  look  of 
friendly  interest,  mixed  with  a  mild  wonder  at  my  per- 
sistence in  pursuing  so  one-sided  a  contest.  I  told  him 
that  I  had  spent  a  good  deal  of  thought  on  his  contentions, 
and  then  went  on :  "Assuming  that  all  the  criticisms  you 
have  levelled  at  the  judicial  methods  of  this  country  are 
sound,  it  is  still  true  that  the  system  is  the  product  of  a 
long  historical  development  based  on  elementary  prin- 


THE   LAWYERS   AND   THE   COURTS  107 

ciples  of  justice  which  no  one  disputes.  It  is  no  violent 
assumption  that  an  instinctively  practical  people  worked 
out  one  of  their  most  important  institutions  by  applying 
those  principles  to  the  problems  of  life.  What  safer  me- 
thod can  there  be  ?  What  imaginable  substitute,  founded 
either  on  experience  or  sound  principle  can  you  suggest  ?" 

"I  have  already  pointed  out,"  said  the  Ass,  ''how  a 
consistent  development  of  an  institution,  in  the  hands  of 
a  special  class  of  men  who  control  all  phases  of  that  de- 
velopment and  at  the  same  time  feed  upon  the  proceeds 
of  the  system,  may  land  the  whole  process  in  the  bogs  of 
shallowness,  formality,  and  ineffectiveness.  As  for  a 
substitute,  history  again  shows  the  direction  from  which 
relief  always  comes.  Practical  necessity  devises  a  way 
to  accomplish  the  necessary  business.  The  new  way  is 
usually  destructive  of  the  old  one  merely  by  shouldering 
it  to  one  side.  It  is  always  simple  and  direct,  relatively 
swift  in  action,  and  effective.  And  more  often  than  not, 
those  most  interested  in  preserving  the  old  system  are 
unconscious  of  the  fatal  blow  that  has  been  struck  at  their 
Beloved  until  it  is  too  late.  Commonly  the  blow  comes 
from  an  under-water  torpedo." 

I  interrupted  him  to  say,  "I  had  hoped  that  without 
further  reference  to  historical  principles  and  data  you 
might  be  able  to  furnish  a  key  to  the  present  problem." 

'That  is  unnecessary,"  he  replied.  "The  fatal  sug- 
gestion has  already  been  made  and  is  working  itself  out. 
Did  you  ever  hear  of  the  PubUc  Utilities  Act  of  the  state 
of  California?  It  covers  more  than  fifty  closely  printed 
pages,  and  is  apparently  long  enough  to  lose  its  purpose 
in  endless  flounderings  in  an  ocean  of  verlDOsity.  But  if 
the  lawyers  of  the  state  should  study  that  law  and  its 
ultimate  significance  as  that  has  been  worked  out  in  the 


108  THE   CASE   OF   THE    PEOPLE   AGAINST 


decisions  that  have  been  made  under  it,  they  might  rec- 
ognize the  fact  that,  instead  of  being  one  more  mess  of 
legal  complexity,  it  is  a  torpedo  of  highly  explosive  gun- 
cotton,  directed  as  straight  as  an  arrow  by  the  gyroscope 
of  pubHc  intention,  at  the  very  vitals  of  the  whole  com- 
plex system  of  judicial  procedure.  In  its  every  aspect  it 
violates  the  most  sacred  judicial  tenets,  and  tumbles  into 
confusion  all  the  legal  thimble-rigging,  delay,  cost,  and 
complexity  on  which  the  financial  support  of  the  legal 
profession  so  largely  depends.  It  has  solved  the  problem 
of  cheap,  swift  and  effective  justice  of  a  very  high 
quality. 

"The  first  and  mortal  sin  of  that  law  is  that  the  ma- 
chinery for  its  enforcement  is  as  simple  as  a  buzz-saw, 
and  just  as  effective.  It  constitutes  the  Railroad  Com- 
mission of  five  members  appointed  by  the  governor  for 
six-year  terms,  provides  for  a  secretary,  and  authorizes 
the  commission  to  hire  whatever  professional  experts 
and  employes  it  may  need,  gives  it  control  of  all  the  pub- 
lic utilities  in  the  state  outside  of  incorporated  cities,  re- 
moves practically  all  the  so-called  reasonable  limits  to  its 
power,  and  religiously  fences  off  the  judicial  powers  of 
the  state  from  interfering  with  the  work  of  the  commis- 
sion. But  in  1914  the  people  of  the  state  adopted  an 
amendment  to  the  constitution  placing  all  utilities,  both 
in  and  out  of  incorporated  towns,  under  the  jurisdiction 
of  the  commission. 

''In  its  field  of  activity  the  commission  exercises  leg- 
islative, administrative  and  judicial  powers.  It  exercises 
the  powers  of  superior  courts,  including  judge  and  jury, 
the  superior  courts  are  forbidden  to  interfere  with  the 
commission,  but  the  law  compels  them  to  enforce  the  de- 
crees of  the  commission.    The  theory  of  the  jury  is  shat- 


THE   LAWYERS   AND   THE   COURTS  109 

tered  to  atoms.  The  people  of  the  state  first  adopted  an 
amendment  to  the  state  constitution  estabUshing  the 
power  of  the  Railroad  Commission  over  public  utilities, 
and  giving  the  legislature  authority  to  grant  to  the  Com- 
mission any  additional  similar  or  different  powers  not  in- 
consistent with  those  already  granted  in  the  amendment 
itself.  They  first  put  their  general  intention  into  the  con- 
stitution, where  the  courts  cannot  touch  it,  and  then  give 
the  legislature  plenary  power  to  make  any  laws  it  pleases 
on  the  subject,  and  practically  notify  the  Supreme  Court 
of  the  state  in  advance  that  any  such  laws  which  the  leg- 
islature may  pass  will  be  in  harmony  with  the  constitu- 
tion and  beyond  the  scope  of  the  court. 

"All  through  the  plan  there  runs  the  spirit  of  a  spe- 
cial dispensation  reUeving  the  commission  from  the 
force  of  restrictive  rules,  and,  as  it  were,  unbinding  and 
turning  loose  the  old,  instinctive  spirit  of  Anglo-Saxon 
justice.  The  powers  of  the  commission  are  so  great  that 
even  the  political  parties  in  their  platforms  admit  that  it 
ranks  second  only  to  the  Supreme  Court;  and  its  effec- 
tiveness has  proved  so  great  that  in  the  political  cam- 
paign of  1914  no  one  who  valued  his  political  life  dared 
to  advocate  openly  the  abolition  of  any  of  its  powers.'' 

'The  qualifications  of  the  commissioners,"  I  re- 
marked, *'are  doubtless  such  that  only  judicial  experts 
can  be  appointed." 

"Oh  no,"  repHed  the  Ass,  after  rubbing  his  nose  on 
his  leg,  "those  qualifications  are  also  a  seven  days'  won- 
der. With  such  tremendous  powers,  traversing  the 
whole  field  of  court  and  jury,  law  and  equity,  a  commis- 
sioner does  not  have  to  be  a  judge  or  even  a  lawyer,  no- 
thing more  than  a  plain,  qualified  elector  of  the  state. 
Actually,  most  of  the  members  of  the  new  commission 


110  THE   CASE   OF   THE    PEOPLE   AGAINST 

were  lawyers,  two  of  them  young  men,  and  none  of  them 
had  ever  served  on  the  bench,  even  as  a  justice  of  the 
peace.  In  many  phases  of  its  work,  such  as  determining 
the  value  of  pubHc  utilities  for  condemnation  purposes, 
it  assumes  the  powers  of  a  jury,  but  it  curiously  ignores 
the  unanimous  rule.  The  act  of  a  majority  of  the  com- 
mission is  an  act  of  the  commission ;  worse  still,  any  in- 
vestigation, inquiry  or  hearing  which  the  commission 
has  power  to  undertake  may  be  taken  by  a  single  com- 
missioner designated  by  the  commission,  and  every  find- 
ing, order  or  decision  made  by  that  commissioner,  when 
approved  and  confirmed  by  the  commission,  is  the  find- 
ing, order  or  decision  of  the  whole  commission. 

"  'The  railroad  commission  is  hereby  vested  with 
power  and  jurisdiction  to  supervise  and  regulate  every 
public  utility  in  the  state  and  to  do  all  things,  whether 
herein  specifically  designated  or  in  addition  thereto, 
which  are  necessary  and  convenient  in  the  exercise  of 
such  power  and  jurisdiction.'  The  commission  may  do 
all  these  things  upon  complaint  of  some  one  else;  but  it 
may  also  do  them  of  its  own  motion.  To  this  end  it  has 
power  to  administer  oaths,  subpoena  witnesses,  order  the 
production  of  books,  papers,  or  any  other  material  evi- 
dence bearing  on  the  matter  at  issue,  enter  the  premises 
of  a  public  utility  to  make  its  investigations,  and  commit 
for  contempt.  In  addition,  the  courts  of  record  are  re- 
quired to  do  these  things  for  the  commission  when  called 
upon  to  do  so ;  but  these  same  courts  are  forbidden  to 
interfere  in  any  way  with  the  work  of  the  commission. 

"All  the  hearings  and  investigations  of  the  commis- 
sion are  governed  by  the  provisions  of  the  public  utilities 
act  and  by  such  rules  of  practice  and  procedure  as  the 
commission  itself  may  adopt ;  and  in  the  conduct  of  their 


THE   LAWYERS    AND   THE   COURTS  111 

investigations  and  hearings  neither  the  commission  nor 
any  commissioner  is  bound  by  the  technical  rules  of  evi- 
dence. When  the  commission  first  began  active  work 
the  lawyers  representing  the  parties  busied  themselves 
raising  objections  to  the  introduction  or  exclusion  of  evi- 
dence, and  in  general  conducted  themselves  as  they  were 
accustomed  to  do  in  the  courts.  The  commission  waved 
them  aside,  and  not  only  let  witnesses  tell  their  stories 
in  their  own  way,  but  often  when  a  witness  got  tangled 
up,  the  commission  helped  him  get  started  again.  The 
parties  to  an  investigation  shall  be  heard;  but  the  com- 
mission may  and  does  investigate  the  facts  independent- 
ly and  it  has  the  power  to  consider  every  fact  that  does 
or  may  have  a  bearing  on  the  issue.  No  informality  of 
procedure  or  in  the  manner  of  taking  testimony  can  in- 
validate the  orders  or  decisions  of  the  commission.  Let 
us  both  be  content  with  the  suspicion  that  this  brutal 
overthrow  of  the  technical  rules  of  evidence  is  intended 
to  increase  efficiency.  All  matters  upon  which  a  com- 
plaint may  be  founded  may  be  joined  in  one  hearing,  and 
there  can  be  no  motion  against  the  complaint  on  the 
ground  of  misjoinder  of  causes  of  action  or  misjoinder 
or  non-joinder  of  parties. 

"The  commission  has  power  to  ascertain  the  value  of 
the  property  of  every  public  utility  in  the  state  and  every 
fact  which  in  its  judgment  may  or  does  have  any  bear- 
ing on  such  value.  Any  city,  town,  county  or  water  dis- 
trict may  initiate  condemnation  proceedings  in  a  court 
of  competent  jurisdiction  to  take  over  a  utility  at  the 
value  set  upon  it  by  the  commission.  This  finding  of 
value  on  the  part  of  the  commission  is  conclusive  as  be- 
tween the  parties.  If  after  the  money  has  been  paid  the 
public  utility  fails  to  execute  a  deed  the  commission  may 
execute  the  deed  as  the  trustee  of  the  public  utility. 


112  THE   CASE   OF   THE    PEOPLE   AGAINST 

''Parties  affected  by  the  orders  and  decisions  of  the 
commission  may  ask  for  a  re-hearing.  If  it  is  denied,  or 
if  it  is  granted,  within  thirty  days  after  the  decision  at  a 
re-hearing,  the  parties  may  ask  the  Supreme  Court  for 
a  writ  of  review  for  the  purpose  of  having  the  lawful- 
ness of  the  commission's  decision  inquired  into  and  de- 
termined. The  commission's  record  is  certified  to  the 
court  and  the  cause  is  heard  on  that  record.  No  new  evi- 
dence may  go  before  the  court.  Thirty  days  are  given 
for  the  return  of  the  writ  and  the  cause  must  be  heard 
on  the  return  day  unless  good  reason  is  shown  for  a  con- 
tinuation. All  actions  and  proceedings  in  court  under 
the  public  utilities  act  have  precedence  over  all  civil 
cases  except  election  cases,  irrespective  of  their  position 
on  the  calendar. 

"  'The  review  shall  not  be  extended  further  than  to 
determine  whether  the  commission  has  regularly  pursued 
its  authority,  including  a  determination  of  whether  the 
order  or  decision  under  review  violates  any  right  of  the 
petitioner  under  the  constitution  of  the  United  States  or 
of  the  state  of  California.  The  findings  and  conclusions 
of  the  commission  on  questions  of  fact  shall  be  final  and 
shall  not  be  subject  to  review.' 

"No  court  in  the  state  (except  the  Supreme  Court, 
and  that  only  to  the  extent  specified),  has  any  jurisdic- 
tion to  review,  reverse,  correct  or  annul  any  order  or  de- 
cision of  the  commission,  or  to  suspend  or  delay  the  exe- 
cution or  operation  of  such  an  order  or  decision,  or  to 
enjoin,  restrain  or  interfere  with  the  commission  in  the 
performance  of  its  official  duties ;  'provided,  that  the 
writ  of  mandamus  shall  lie  from  the  supreme  court  to 
the  commission  in  all  proper  cases.'  Ah,  that  deUcate, 
Satanic  touch.    Even  the  Supreme  Court  may  only  com- 


THE   LAWYERS   AND   THE   COURTS  113 

pel  the  commission  to  act  if  it  proves  unwilling,  but  can- 
not stop  it  when  it  is  started. 

"The  pendency  of  a  writ  of  review  does  not  of  itself 
stay  or  suspend  the  acts  of  the  commission;  that  must 
be  done  by  direct  order  of  the  court.  And  such  an  order 
cannot  be  issued  casually  as  a  mere  formality  to  block 
the  work  of  the  commission  until  the  court  finds  it  con- 
venient to  look  the  matter  over.  If  an  order  or  decision 
of  the  commission  is  suspended  the  court's  order  must 
contain  a  specific  finding  based  upon  evidence  submitted 
to  the  court  *that  great  or  irreparable  damage  would 
otherwise  result  to  the  petitioner  and  specifying  the  na- 
ture of  the  damage.' " 


114  THE   CASE   OF   THE   PEOPLE  AGAINST 


XV 
The  Railroad  Commission  at  Work 

THE.  FIRST  writ  of  review  under  the  public  utilities 
law  was  issued  by  the  Supreme  Court  in  the 
case  of  the  Pacific  Telephone  and  Telegraph 
Company  against  Eshleman  (president  of  the  Railroad 
Commission).  In  its  opinion  the  Supreme  Court,  with 
apparent  bitterness  of  spirit,  acknowledged  the  validity 
of  the  law  and  pointed  out  its  remarkable  peculiarities. 
Among  other  things  of  great  interest  it  said,  Tn  this  con- 
sideration the  first  established  fact  is  that  section  67  of 
the  public  utilities  act  does,  in  violation  of  all  precedent 
and  decision,  seek  to  enlarge  the  purview  of  the  writ  of 
review.  .  .  .  The  second  fact,  which  cannot  be 
blinked  and  must  be  faced,  is  that  the  legislature  has 
with  deliberation  restricted  and  curtailed  the  jurisdiction 
vested  in  the  superior  courts  of  this  state  by  the  consti- 
tution.' The  court  went  on  to  say  further,  Tn  view  of 
these  considerations  we  regard  the  conclusion  as  irresis- 
tible that  the  constitution  of  this  state  has  in  unmistaka- 
ble language  created  a  commission  having  control  of  the 
public  utilities  of  the  state,  and  has  authorized  the  legis- 
lature to  confer  upon  that  commission  such  powers  as  it 
may  see  fit,  even  to  the  destruction  of  the  safeguards, 
privileges  and  immunities  guaranteed  by  the  constitution 
to  all  other  kinds  of  property  arid  its  owners.  And  while 
under  our  republican  form  of  government  ...  it 
is  perhaps  the  first  instance  where  a  constitution  itself 
has  declared  that  a  legislative  enactment  shall  be  su- 


THE   LAWYERS   AND   THE   COURTS  115 

preme  over  all  constitutional  provisions,  nevertheless  this 
is  but  a  reversion  to  the  English  form  of  government, 
which  makes  an  act  of  Parliament  the  supreme  law  of 
the  land.  ...  So  here  the  State  of  California  has 
decreed  that  in  all  matters  touching  public  utilities  the 
voice  of  the  legislature  shall  be  the  supreme  law  of  the 
land.  This  constitutional  decree  is,  of  course,  binding 
upon  this  court,  and  under  it,  it  becomes  the  duty  of  this 
court  to  lend  its  aid  in  giving  effect  to  every  power  and 
prerogative  with  which  the  legislature  may  vest  or  clothe 
the  railroad  commission.  This,  however,  is  subject  to 
one  all-important  limitation.  There  is  still  the  constitu- 
tion of  the  United  States.' 

"Could  there  be  a  more  complete  wrecking  of  an 
elaborate  system  of  judicial  procedure?"  In  answer  I 
suggested  that  probably  the  powers  granted  the  railroad 
commission  were  after  all  greater  than  were  really  in- 
tended. But  the  Ass  repHed:  "The  Supreme  Court  it- 
self emphasizes  the  deliberation  which  the  people  and 
the  legislature  exercised.  And  no  one  can  read  the  law 
itself  without  coming  away  with  the  impression  that  not 
only  was  all  this  done  deliberately,  but  with  the  definite 
purpose  of  making  the  commission  so  powerful  that  no- 
thing could  stop  it  from  accomplishing  results.  Appar- 
ently careful  attention  was  given  to  every  device  by 
which  the  independence  of  the  commission  could  be 
strengthened.  As  the  court  itself  pointed  out,  the  com- 
mission exercises  all  three  functions  of  government; 
it  has  legislative,  administrative,  and  great  judicial 
powers." 

I  asked,  "Why  was  there  such  a  jumble  of  powers? 
The  very  foundations  of  our  state  and  federal  govern- 
ments rest  on  the  principle  that  the  three  great  divisions 


116  THE   CASE   OF   THE    PEOPLE   AGAINST 

of  government  shall  not  only  be  exercised  separately, 
by  distinct  departments  and  individuals,  but  that  there 
shall  be  a  system  of  checks  and  balances,  an  interlocking 
dependence  of  each  on  the  others.  It  is  hardly  to  be 
wondered  at  that  the  Supreme  Court  of  California  spoke 
with  some  energy  when  it  discussed  the  utilities  law." 

The  Ass  gazed  for  a  long  time  in  the  direction  of 
Emigrant  Wash,  as  if  he  were  expecting  intellectual  re- 
inforcements, and  then  rephed:  'The  purpose  to  give 
these  great  powers  to  the  commission  could  not  have 
been  made  plainer  if  it  had  been  written  down  in  words. 
It  was  evidently  done  to  destroy  those  very  checks  and 
balances  which  have  practically  destroyed  the  efficiency 
of  the  system.  What  has  hitherto  always  happened  when 
an  administrative  board  issued  orders  or  rendered  deci- 
sions which  a  corporation  did  not  want  to  obey?  All 
that  was  needed  was  an  injunction.  That  was  the  first 
step  in  a  long  and  usually  futile  legal  contest ;  futile  be- 
cause it  suspended  the  power  of  the  board ;  and  even  if 
the  board  won  the  victory,  that  victory  was  often  too  late 
to  be  of  any  value." 

I  said  that  I  had  once  suggested  fewer  illustrations 
and  more  general  analysis,  but  now  I  wanted  him  to  give 
cases  that  would  actually  prove  the  superior  worth  of 
the  new  California  way.  He  appropriately  chose  the 
case  of  the  city  of  Palo  Alto  because  it  was  the  first  mu- 
nicipality to  commit  the  control  of  its  public  utilities  to 
the  hands  of  the  state  railroad  commission.  He  said, 
"The  Palo  Alto  Gas  Company  bought  its  gas  at  whole- 
sale from  the  big  Pacific  Gas  and  Electric  Company,  and 
charged  $1.50  a  thousand  feet.  The  outrageous  price 
was  tolerated  for  several  years,  but  after  a  while  the  city 
council  started  an  investigation  with  a  view  to  fixing  a 


THE   LAWYERS   AND   THE   COURTS  117 

gas  rate.  Its  efforts  to  secure  information  from  the 
company  about  the  distribution  of  gas  pipes,  value  of 
plant  and  other  items  was  truly  pathetic ;  but  still 
typical  of  what  always  happened  in  such  cases. 
The  company  turned  the  investigation  into  a  farce; 
but  the  council,  after  securing  such  facts  as  it  could, 
set  the  gas  rate  at  $1.25.  The  company  promptly 
got  a  writ  of  injunction  from  the  superior  court  and  the 
case  promised  to  run  the  usual  endless  course.  The  rate 
could  easily  be  held  up  for  a  year,  the  company  mean- 
while collecting  what  it  chose;  at  the  end  of  the  year  the 
rate  would  have  to  be  fixed  anew,  and  would  be  subject 
to  a  fresh  injunction. 

"But  the  community  adopted  a  brilliant  course. 
While  the  injunction  was  hanging  fire  in  the  court,  the 
town,  by  a  vote  of  thirteen  to  one,  decided  to  give  over 
the  control  of  its  pubHc  utiUties  to  the  railroad  commis- 
sion, filed  a  complaint  about  the  price  of  gas  and  asked 
for  a  hearing.  It  was  as  if  some  one  had  broken  a  plate 
glass  window.  The  commission  ordered  a  hearing.  It 
came  promptly  and  was  held  by  a  single  commissioner. 
All  the  evidence  was  promptly  forthcoming.  It  was 
serio-comic,  the  grace  and  kindness  with  which  lawyers 
and  gas  officials  submitted  to  control.  There  were  no 
technical  rules  to  interfere.  In  a  remarkably  short  time 
the  one  commissioner  who  conducted  the  investigation 
had  heard  all  the  evidence  that  either  side  wanted  to  in- 
troduce ;  the  commission's  experts  had  made  a  thorough- 
going independent  investigation  of  the  facts;  the  hear- 
ing was  adjourned  to  the  city  of  San  Francisco  and  the 
big  producing  gas  company  had  to  submit  to  an  investi- 
gation which  included  the  value  of  its  plant;  and  there 
was  a  prompt  decision.    The  city  council  had  been  will- 


118  THE   CASE   OF   THE    PEOPLE  AGAINST 

ing  to  let  the  company  collect  $1.25  a  thousand  feet,  but 
the  company  blocked  proceedings  with  an  injunction. 
The  commission  set  the  rate  at  only  $1.20  and  the  rate 
went  into  effect  without  any  ado  when  the  commission 
said  it  should.  Was  not  that  whole  performance  a  ju- 
dicial curiosity?  That,  I  fancy,  was  what  the  people  of 
California  had  in  mind  when  they  tied  the  hands  of  the 
courts  and  gave  the  railroad  commission  practically  un- 
limited authority  to  deal  out  prompt,  cheap  and  effective 
justice." 

I  admitted  that  the  case  was  a  curiosity,  and  predict- 
ed that  in  the  long  run  there  would  be  the  usual  and  in- 
evitable and  justifiable  delay  and  struggle.  But  the  Ass 
appealed  to  the  record  of  the  commission's  work  for 
proof  of  his  general  contention  and  the  wisdom  of  the 
people.    He  said: 

"In  about  two  and  a  half  years  from  the  time  it  be- 
gan its  work  the  California  Railroad  Commission  dealt 
with  more  than  1500  formal  cases  and  more  than 
3600  informal  matters.  Many  of  these  cases  were 
of  the  most  vital  and  far-reaching  importance,  involving 
elaborate  investigations  of  rates,  unfair  practices,  dis- 
criminatipn,  the  value  of  great  public  utilities  and  their 
financial  methods  and  needs.  It  has  been  fairly  claimed 
that  the  commission  has  saved  each  year  to  the  people  of 
the  state  at  least  $6,000,000;  and  it  has  forced  better 
service,  set  higher  standards,  and  done  all  this  without 
real  injury  to  the  corporations.  In  fact,  by  forcing  the 
water  out  of  their  securities  it  has  done  much  to  streng- 
then their  value  as  investments. 

"It  is  easy  to  calculate  the  rate  at  which  decisions 
were  made  by  the  commission.  After  allowing  for  Sun- 
days, holidays  and  legitimate  vacations,  it  is  generous  to 


THE   LAWYERS   AND   THE   COURTS  119 

say  that  the  members  of  the  commission  could  work  ef- 
fectively two  hundred  days  in  the  year.  Even  the  formal 
cases  alone  would  furnish  an  average  of  six  hundred  a 
year,  or  three  cases  a  day  for  five  men  to  consider.  This, 
to  my  mind,  is  one  of  the  most  astounding  results  of  the 
disorderly  pubUc  utilities  law." 

"Such  speed,"  I  observed,  "will  ultimately  lead  to 
premature  decisions  and  confusion.  The  utilities  law 
may  turn  out  to  be  the  mother  of  tumult."  But  he  re- 
plied, "The  effect  of  the  enforcement  of  that  law  for  less 
than  three  years  has  been  such  that  the  people  of  Cali- 
fornia regard  their  railroad  commission  as  one  of  the 
most  powerful  and  beneficent  institutions  in  the  whole 
nation.  Its  labors  have  not  only  rectified  many  specific 
wrongs,  but  have  created  an  atmosphere  in  which  it  is 
no  longer  profitable  for  pubUc  utilities  to  pursue  unfair 
practices.  They  are  assured  protection  in  all  reasonable 
activities  and  there  is  a  lessening  desire  to  exploit  their 
opportunities  unfairly.  After  two  years  and  a  half,  in  a 
political  campaign  of  great  bitterness,  there  was  not  a 
political  party,  there  was  not  a  candidate,  that  dared  to 
suggest  openly  that  the  commission  ought  to  be  ham- 
pered or  hamstrung.  And  as  if  to  set  the  seal  of  their 
highest  approval  on  the  work  of  the  commission,  the 
people  of  the  state,  in  the  general  election  of  1914,  adopt- 
ed two  more  constitutional  amendments  to  extend  and 
strengthen  the  powers  of  the  commission." 

I  offered  the  opinion  that  the  plunging  activity  of  the 
commission  would  be  steadied  after  a  while  by  the  de- 
cisions of  the  state  supreme  court  and  the  federal  courts 
in  the  cases  that  would  be  taken  up  on  review.  But  he 
was  ready  with  a  reply. 

"Of  the  more  than  1500  formal  decisions  and  orders 


120  THE   CASE   OF   THE    PEOPLE   AGAINST 

issued  by  the  commission  in  the  first  two  and  a  half 
years,  only  eight  had  been  carried  up  to  the  supreme 
court  of  the  state  for  review.  Six  of  these  had  been 
acted  upon.  And  there  is  nothing  in  the  judicial  history 
of  the  state  that  so  plainly  exposes  the  obstructive  rela- 
tion of  your  courts  of  appeal  to  the  actual  wants  of  the 
people  and  to  the  great  drift  of  modern  thought.  The 
first  case  to  go  before  the  supreme  court  was  that  of  the 
Pacific  Telephone  and  Telegraph  Company  against 
Eshleman  (president  of  the  railroad  commission).  The 
local  telephone  companies  of  Glenn  county  and  Tehama 
county  petitioned  that  the  Pacific  Telephone  and  Tele- 
graph Company  be  compelled  to  let  them  connect  their 
systems  with  its  long  distance  wires,  so  that  their  patrons 
might  have  the  benefit  of  long  distance  service.  They 
agreed  to  pay  the  cost  of  making  the  connections  and 
that  they  would  pay  a  reasonable  rate  for  the  long  dis- 
tance service. 

"The  commission  ordered  that  the  connections  be 
made.  The  case  was  carried  to  the  Supreme  Court  of 
California  on  a  writ  of  review,  and  the  court  held  that 
in  effect  the  order  amounted  to  a  taking  of  property 
without  compensation,  contrary  to  the  rights  guaranteed 
by  the  state  and  federal  constitutions.  The  order  of  the 
commission  was  annulled,  and  as  the  law  did  not  pro- 
vide that  the  commission  itself  might  appeal  to  the  fed- 
eral courts,  the  annulment  was  final. 

"But  the  laborious  reasoning  of  the  state  Supreme 
Court  ended  where  it  began.  The  Supreme  Court  of  the 
United  States  had  frequently  upheld  state  railroad  com- 
missions in  forcing  railroads  to  make  physical  connec- 
tions with  each  other ;  but  the  California  court  held  that 
there  was  some  difference  between  the  telephone  case 


THE   LAWYERS   AND   THE   COURTS  121 

and  the  railroad  cases.  But  its  laborious  attempt  to 
draw  a  distinction  came  to  naught.  In  an  Oregon  case 
before  three  federal  judges,  Wolverton  writing  the  de- 
cision, the  same  question  came  up  in  a  case  of  the  same 
telephone  company.  The  company  relied  on  the  Califor- 
nia decision  in  its  argument  before  the  federal  court,  but 
the  federal  court  specifically  rejected  the  view  of  the 
California  court  and  the  telephone  company  lost  its  ap- 
peal. The  Supreme  Court  of  Idaho  likewise  has  refused 
to  adopt  the  view  of  the  California  court.  Thus  was  the 
very  first  decision  of  the  CaHfornia  Supreme  Court  re- 
lating to  the  public  utilities  law  discredited  in  both  the 
federal  courts  and  the  courts  of  other  states.  And  as  if 
Fate  itself  had  become  malicious,  on  the  very  day  that 
the  California  court  rendered  its  decision,  the  Bell  Tele- 
phone Company,  the  parent  company  of  the  Pacific  Tele- 
phone and  Telegraph  Company,  agreed  with  the  federal 
government  that  it  would  make  physical  connections 
with  other  telephone  companies  without  any  pay  other 
than  its  share  of  the  tolls. 

'Tn  its  effort  to  undo  the  work  of  the  commission 
the  California  court  had  only  done  what  commonly  hap- 
pens in  the  tangles  of  judicial  interpretation;  it  merely 
blocked  for  a  while  a  necessary,  legitimate  and  inevitable 
step  in  the  development  of  public  utility  practice.  This 
time,  at  least,  the  decision  of  the  court,  so  solemnly 
worked  out,  was  utterly  ineffective  because  time,  pro- 
gress and  business  sense  were  all  opposed  to  it.  This  epi- 
sode of  the  court's  first  decision  is  especially  interesting 
because  it  enforces  the  doctrine  that  judicial  service  can 
never  effectively  conserve  the  interests  of  the  people  un- 
less it  interprets  the  principles  of  government  in  the  light 
of  present  needs  and  future  outlook." 


122  THE   CASE   OF   THE    PEOPLE   AGAINST 


XVI 
Commission  and  Court:    A  Contrast 

AFTER  a  short  rest  my  friend  the  Ass  went  on:  *'An 
unbiased  examination  of  the  few  decisions  which 
^  the  Supreme  Court  of  CaHfornia  has  handed 
down  in  the  cases  that  have  come  before  it  under  the 
public  utilities  law  might  set  not  only  the  people  but  the 
lawyers  to  thinking  seriously  about  the  true  relation  of 
that  court  to  actual  conditions  of  life  as  they  exist  in 
California.  In  the  case  that  we  have  examined  the  judg- 
ment of  the  railroad  commission  has  been  completely 
justified  by  time  and  the  courts  of  the  nation,  and  the 
judgment  of  the  court  has  been  utterly  discredited. 
But  the  court  had  done  only  what  had  been  done  thou- 
sands of  times  before  in  the  decisions  of  the  appellate 
courts.  There  was  merely  an  over-nice  anxiety  to  pre- 
serve the  letter  of  an  ancient  rule  and  a  general  disre- 
gard of  the  changes  that  have  already  taken  place  in  the 
views  of  the  people.  The  decision  of  the  court  is  further 
interesting  in  that  it  has  turned  out  to  be,  in  spite  of  its 
labored  solemnity,  not  a  necessary  judgment  founded  on 
sound  principles,  but  merely  an  opinion  which  has  been 
proved  worthless  both  in  theory  and  practice. 

*Tn  this  case  the  great  corporation  used  the  courts 
to  thwart  the  will  of  the  people,  and  the  argument  that 
its  property  was  being  taken  without  due  process  of  law 
was  proved  false  by  the  act  of  its  own  parent  company. 
It  will  be  well  to  consider  a  railroad  case  that  illustrates 
this  serious  assertion.     The  Southern  Pacific  Railroad 


THE   LAWYERS   AND   THE   COURTS  123 

charged  a  rate  of  $1.20  a  ton  on  lumber  for  the  twenty- 
four  mile  haul  from  San  Pedro  to  Los  Angeles.  A  com- 
plaint was  filed  with  the  railroad  commission,  which, 
after  a  careful  investigation,  pronounced  the  rate  un- 
reasonable and  fixed  a  new  rate  of  $.80  a  ton  to  become 
effective  on  a  certain  Monday  afternoon  at  three  o'clock. 
The  commission  was  informed  that  the  company  would 
file  a  contest.  The  railroad  officials  suggested  that  the 
commission  arrest  the  freight  agent  at  San  Pedro  for 
disobeying  the  order  of  the  commission.  The  commis- 
sion repHed  that  it  was  not  arresting  freight  agents  or 
any  other  subordinates ;  if  the  rate  did  not  go  into  effect 
at  the  time  set,  the  president  of  the  road  would  be  ar- 
rested and  prosecuted. 

"All  the  amenities  of  judicial  contests  between  the 
state  and  the  big  corporations  had  been  forgotten.  Here 
was  a  coarse  disregard  of  official  dignity,  precedent  and 
decency.  But  the  new  rate  went  into  effect  at  the  ap- 
pointed time.  All  this,  however,  was  only  the  prelimin- 
ary playfulness  of  heat-lightning.  Much  of  the  lumber 
came  from  Oregon  and  Washington ;  thus  there  was  in- 
volved a  question  of  interstate  commerce,  and  the  railroad 
took  a  case  into  the  federal  courts,  making  oath  that  the 
new  rate  was  confiscatory.  But  the  federal  court  was 
not  impressed  and  upheld  the  state  railroad  commission. 

"But  that  was  not  the  worst  thing  that  could  hap- 
pen. Sometimes  a  skilful  hunter  misses  his  mark  be- 
cause a  little  gnat  flies  into  his  eye  and  spoils  his  aim. 
The  wagon  road  was  good,  and  some  private  citizens 
decided  that  they  could  compete  with  the  railroad  by 
hauling  lumber  from  the  wharf  directly  to  the  jobs  in 
Los  Angeles  on  automobile  trucks.  And  so  it  befell  that 
very  shortly  after  the  railroad  had  filed  its  protest  with 


124  THE    CASE   OF   THE    PEOPLE   AGAINST 

the  commission  and  made  its  oath  about  confiscation  in 
the  ear  of  the  federal  court,  that  same  railroad  company 
appeared  before  the  commission  again,  but  this  time 
with  a  request  for  permission  to  reduce  the  rate  still 
further  to  $.60  a  ton.  Once  more  the  stubborn  commis- 
sion refused  to  listen,  and  forbade  the  reduction  on  the 
vulgar  ground  that  lumber  could  not  be  hauled  at  that 
rate  without  loss,  and  the  commission  would  not  give  its 
consent  to  the  practice  of  hauling  freight  at  a  loss  in  one 
place  to  crush  competition,  and  then  make  up  the  loss 
by  excessive  charges  somewhere  else. 

''In  another  case  that  went  to  the  Supreme  Court  of 
California  on  a  writ  of  review  the  commission  had  for- 
bidden the  Oro  Electric  Company  to  exercise  the  fran- 
chise which  the  city  of  Stockton  had  given  it  to  build 
and  operate  an  electric  light  system  in  addition  to  the 
one  already  furnishing  light  in  the  city.  The  commis- 
sion did  this  on  the  ground  that  it  was  against  pubUc  pol- 
icy to  let  a  light  company  invade  territory  already  pro- 
vided, because  in  the  end  the  taxpayers  are  the  ones  who 
have  to  bear  the  burden  of  such  duplicate  systems.  Prac- 
tically every  city  in  the  nation  has  at  some  time  or  other 
been  sweated  by  some  corporation  in  its  effort  to  get 
back  the  money  it  spent  in  buying  out  some  rival,  whose 
coming  into  the  game  at  all  was  probably  little  more 
than  gigantic  blackmail.  But  the  order  of  the  commis- 
sion was  annulled  on  the  ground  that  under  the  law  the 
city  retained  control  of  its  utilities  in  every  respect  un- 
til it  voted  control  into  the  hands  of  the  commission. 
The  commission  asked  a  re-hearing  and  proved  that  the 
Stockton  charter,  on  the  powers  of  which  Judge  Shaw 
relied  when  he  annulled  the  order  of  the  commission, 
had  not  gone  into  effect  when  the  commission  made  its 


THE   LAWYERS   AND   THE   COURTS  125 

order.  The  court  thereupon  vacated  its  own  order  of 
annuUment. 

"The  commission  had  ordered  a  water  company  to 
lay  pipe  and  furnish  water  to  an  outlying  resident  of 
Del  Mar.  The  company  carried  the  case  up  for  review, 
claiming  that  it  was  not  a  public  utility.  Two  judges 
of  the  Supreme  Court  handed  down  an  opinion  that  the 
company  was  not  a  public  utility,  and  four  other  judges 
hinted  that  the  company  was  not  a  public  utility  but  held 
that  in  any  case  the  company  was  not  under  any  obliga- 
tion to  serve  the  territory  in  question.  The  conditions 
under  which  this  company  operated  were  typical  of  more 
than  half  of  the  water  companies  in  the  state,  and  this 
annullment  would  have  removed  all  of  them  from  the 
jurisdiction  of  the  commission.  The  commission  asked 
for  a  re-hearing,  and  this  time  the  court  ruled  that  the 
original  opinion  that  the  company  was  not  a  public  util- 
ity could  not  be  used  as  a  precedent,  but  again  annulled 
this  particular  order  because  the  commission  itself  had 
not  proved  that  the  company's  water  was  dedicated  to 
this  particular  territory. 

"The  two  water  companies  of  Glendale  charged  $15 
for  the  installation  of  meters  and  service  connections. 
The  commission  gave  a  decision  that  the  companies 
must  make  the  installations  at  their  own  expense,  but 
with  the  understanding  that  consumers  must  pay  such 
rates  as  would  cover  the  investment.  The  companies 
appealed  and  the  Supreme  Court  again  annulled  the 
order  of  the  commission.  It  held  that  the  order  was 
reasonable,  but  that  it  should  have  been  enforced  by 
Glendale  itself,  because  the  order  was  not  a  service  reg- 
ulation but  incidental  to  the  fixing  of  rates.  Justice 
Shaw,  who  wrote  the  decision,  held  that  sec.  11,  art.  xi, 


126  THE   CASE   OF   THE    PEOPLE   AGAINST 

of  the  state  constitution,  conferring  upon  municipalities 
the  power  to  enact  police  regulations,  gave  to  the  cities 
and  towns  of  the  state  the  state's  entire  power  to  super- 
vise and  regulate  public  utilities  within  their  limits,  in- 
cluding not  merely  power  over  rates  but  also  service,  ex- 
tensions, finances,  and  the  issue  of  securities.  The  rul- 
ing was  unnecessary  to  the  decision  in  the  case,  and  is 
for  that  reason  all  the  more  significant.  For  the  effect 
of  it  was  to  oust  the  railroad  commission  completely  of 
any  jurisdiction  whatever  within  any  incorporated  city 
or  town  in  the  state. 

"The  commission  asked  for  a  re-hearing  and  showed 
that  the  ruling  was  contrary  to  the  views  of  legal  writers 
of  authority,  contrary  to  a  unanimous  line  of  decisions 
in  other  states,  and  that  such  an  interpretation  of  that 
particular  section  of  the  constitution  turned  many  other 
constitutional,  statutory  and  charter  provisions  into  sur- 
plusage, in  violation  of  a  fundamental  principle  of  ju- 
risprudence. The  court  denied  the  commission  a  re- 
hearing, but  at  the  same  time  struck  out  of  its  former 
opinion  all  that  part  relating  to  its  construction  of  sec. 
II,  art.  xi,  of  the  constitution. 

"Some  property  owners  in  Otay  Valley  asked  the 
commission  to  compel  the  city  of  San  Diego,  as  the  suc- 
cessor of  a  private  water  company,  to  furnish  them  with 
water  for  their  land.  The  commission  denied  the  re- 
quest on  the  general  ground  that  the  city  and  other  ac- 
tual consumers  needed  all  the  water  that  could  be  sup- 
plied, and  under  those  conditions  it  would  not  require 
that  additional  consumers  should  be  added.  The  com- 
mission was  upheld  by  the  Supreme  Court. 

"On  complaint  the  commission  undertook  to  regulate 
the  passenger  rates  by  water  between  San  Pedro  and 


THE   LAWYERS   AND   THE   COURTS  127 

Avalon  on  Catalina  Island.  The  Wilmington  Trans- 
portation Company  carried  the  case  to  the  Supreme 
Court  and  argued  that  although  both  places  were  in  Los 
Angeles  county  and  the  boats  did  not  stop  anywhere  on 
the  way,  they  were  engaged  in  foreign  commerce  while 
passing  over  the  twenty-one  miles  of  intervening  open 
sea,  and  that  therefore  Congress  alone  had  jurisdiction 
over  them.  They  had  a  judicial  argument  to  support 
their  position.  Justice  Fields,  of  California,  then  a  mem- 
ber of  the  Supreme  Court  of  the  United  States,  and  sit- 
ting in  1883  as  presiding  justice  of  the  federal  Circuit 
Court  for  the  district  of  CaUfornia,  held  that  vessels  of 
the  Pacific  Coast  Steamship  Company,  because  they  went 
outside  of  the  three-mile  limit  between  the  ports  of  San 
Francisco  and  Los  Angeles,  were  under  the  exclusive 
jurisdiction  of  the  federal  government.  The  state  Su- 
preme Court  upheld  the  order  of  the  commission,  and 
the  case  was  appealed  to  the  United  States  Su- 
preme Court.  Early  in  191 5  the  United  States  Supreme 
Court  rendered  a  decision  sustaining  the  state  railroad 
commission. 

"Thus  the  state  Supreme  Court  had  acted  on  six 
cases  that  were  taken  up  for  the  purpose  of  overthrow- 
ing the  orders  and  decisions  of  the  commission.  In  the 
telephone  case  the  federal  court  and  the  courts  of  other 
states  have  repudiated  the  opinion  of  the  California 
court,  and  the  telephone  authorities  themselves  have 
agreed  with  the  federal  government  to  do  the  thing  that 
the  commission  had  ordered  them  to  do  in  California. 
The  general  doctrine  which  the  commission  sought  to 
make  effective  has  triumphed.  In  the  Del  Mar  water 
case  the  court  practically  ousted  the  commission  from 
jurisdiction  over  most  of  the  water  companies  of  the 


128  THE   CASE   OF   THE   PEOPLE   AGAINST 

state,  and  then  repudiated  its  own  doctrine.  In  the  Oro 
Electric-Stockton  case  and  the  Glendale  case  the  court 
went  to  great  lengths  to  cut  off  entirely  the  jurisdic- 
tion of  the  commission  within  corporate  Hmits,  and  then 
withdrew  its  own  doctrine  in  both  cases. 

"The  net  result  to  date  of  the  Supreme  Court's  exer- 
cise of  jurisdiction  over  the  railroad  commission  is  that 
in  the  little  town  of  Glendale,  the  town  itself  instead  of 
the  commission  should  enforce  a  rule  which  the  com- 
mission laid  down  and  which  the  court  itself  admits  is 
reasonable;  and  that  in  the  little  town  of  Del  Mar  the 
man  who  wanted  water  connections  lived  too  far  out  to 
make  his  desire  enforceable.  Did  the  mountain  labor 
and  bring  forth  a  ridiculous  mouse?  The  railroad  com- 
mission has  yet  to  meet  its  first  definite  defeat  on  any  of 
the  very  important  propositions  and  rules  for  the  con- 
duct of  public  utilities  that  it  has  promulgated.  Its  for- 
ward-looking doctrines  have  been  endorsed  by  the  fed- 
eral courts  and  other  state  courts,  by  the  best  legal  opin- 
ion, by  the  California  court  itself,  by  one  of  the  great 
corporations  that  contested  a  case,  and  by  Father  Time 
himself.  As  if  there  were  no  depth  of  judicial  humilia- 
tion from  which  the  Supreme  Court  of  the  state  should 
be  exempt,  the  people  of  California  have  now  adopted 
another  constitutional  amendment  which  gives  the  com- 
mission the  same  jurisdiction  over  public  utilities  with- 
in incorporated  cities  and  towns  that  it  already  had  else- 
where in  the  state,  and  thus  removes  the  last  question  of 
the  commission's  authority.  In  this  prolonged  contest, 
with  precedent,  history,  and  the  powers  of  a  great  judi- 
cial system  against  it,  the  commission  has  brought  out 
more  sharply  than  has  ever  been  done  before  in  the  his- 
tory of  the  state  the  fact  that  the  courts  are  not  serving 
the  future  and  that  the  commission  is.    The  commission 


THE   LAWYERS   AND   THE  COURTS  129 

has  made  fewer  errors  than  the  Supreme  Court.  The 
latter  repudiated  in  full  or  in  part  its  own  opinions  in 
three  out  of  the  six  cases. 

"The  people  of  California  were  not  in  a  ruthless 
mood  when  they  revolutionized  the  whole  method  of 
dealing  with  the  utilities,  the  most  law-defying  elements 
in  the  state.  The  courts  had  proved  themselves  utterly 
'incompetent' ;  the  people  went  the  rest  of  the  way  and 
made  them  'irrelevant  and  immaterial.'  The  constitu- 
tional amendments  and  the  utility  law  have  broken  down 
constitutional  guarantees,  shattered  the  powers  of  the 
courts,  wiped  out  the  rules  of  evidence,  and  removed  the 
boundaries  of  trial  by  jury.  They  spared  nothing.  And 
it  was  all  done  so  deliberately  that  no  one  in  California 
is  recorded  to  have  lost  a  night's  sleep  over  the  changes. 
There  has  even  been  a  kind  of  hallelujah  spirit,  like  that 
of  a  man  who  sings  'Once  I  was  blind,  but  now  I  can 
see';    a  political  fervor  born  of  oppression  and  release. 

"These  radical  changes  of  procedure  were  made  be- 
cause there  was  a  present  and  desperate  need.  For 
more  than  a  generation  the  state  had  been  dominated  by 
the  corporations  and  the  courts  had  been  their  hand- 
maids. No  amount  of  eloquence  or  historical  prece- 
dents or  political  and  judicial  philosophy  can  carry  as 
much  conviction  as  the  former  and  the  present  condi- 
tion of  affairs  in  the  relations  between  the  people  and 
the  pubUc  utilities.  All  the  radical  innovations  of  prin- 
ciple and  procedure  were  intended  to  secure  directness, 
speed  and  efficiency;  and  the  results  have  justified  the 
course  pursued.  The  change  in  this  field  of  the  people's 
interests  only  makes  more  vivid  the  conditions  of  delay, 
cost,  uncertainty  and  exasperation  that  accompany  the 
old  judicial  forms  of  thought  and  procedure." 


1'30  THE   CASE   OF   THE   PEOPLE   AGAINST 


XVII 
Virile  Commissions  and  Impotent  Courts 

'  ¥  s  IT  NOT  likely,"  I  asked,  "that  this  California  ex- 
I  periment,  so  unique,  so  out  of  line  with  the  normal 
■■•  course  of  public  thought  in  the  nation,  will  in  the 
end  be  smothered  under  the  pressure  of  general  opinion ; 
the  more  so  when  the  people  of  the  state  have  had  time 
to  realize  what  has  happened  to  their  governmental 
forms?"  The  Burro  replied,  *'It  is  too  late  in  the  day  to 
call  the  performance  unique.  The  state  has  merely  per- 
fected a  thought  that  has  found  expression  in  a  variety 
of  ways  in  many  of  the  states  of  the  Union,  and  even  in 
the  federal  government.  A  few  years  ago  Congress  es- 
tablished a  Commerce  Court  to  sit  in  watchful  soHcitude 
and  pass  upon  the  doings  of  the  Interstate  Commerce 
Commission.  A  short  experience  with  the  court  and  its 
backward-looking  performances  cured  the  nation  of  the 
desire  for  such  a  court  and  it  was  summarily  abolished. 
Many  of  the  states  have  laws  similar  to  those  of  CaHfor- 
nia.  The  movement  has  gathered  such  momentum  that 
there  can  never  be  a  reversion  to  the  old  way  of  leaving 
the  settlement  of  problems  affecting  the  whole  public  to 
the  inefficient  methods  of  the  old  judicial  procedure. 

"CaUfornia  herself  has  done  other  things  involving 
the  same  revolutionary  notions.  The  public  utilities  law 
deals  only  with  corporations  and  persons  which,  by  vir- 
tue of  their  services,  have  a  general  public  interest.  All 
questions  affecting  their  relations  to  the  people  have 
been  practically  removed  from  the  jurisdiction  of  the 


THE   LAWYERS    AND   THE   COURTS  131 


courts  in  the  interest  of  prompt  and  certain  results,  on 
the  theory  that  justice,  to  be  of  any  value,  must  be 
prompt,  for  meanwhile  the  victims  die.  But  the  image- 
breaking  process  has  been  applied,  both  in  California  and 
in  other  states,  to  the  relations  between  private  individ- 
uals and  between  individuals  and  corporations. 

"The  California  Workmen's  Compensation  Act  takes 
another  large  class  of  cases  out  of  the  jurisdiction  of 
the  courts  and  places  them  under  the  control  of  a  com- 
mission of  common  men.  Before  its  day  there  were 
cases  of  the  death  of  workmen  in  which  the  employer 
was  clearly  responsible.  The  widow  brought  suit  for 
damages  while  her  children  were  little,  and  those  same 
children  were  grown  up  and  able  to  support  themselves 
before  the  mother  finally  got  what  she  was  entitled  to 
through  the  courts.  Under  the  old  system  the  injured 
and  their  dependents  got  nothing  but  the  husks,  they  had 
to  feed  on  theory ;  and  if  they  recovered  anything,  a  large 
part  of  it  went  as  attorney's  fees.  On  the  other  hand, 
employers  were  harassed  by  the  most  cruel  uncertainty. 
When  the  doctrine  of  compensation  first  began  to  be  en- 
forced in  California  one  of  the  great  corporations  of  the 
country  voluntarily  placed  itself  under  the  jurisdiction 
of  the  law.  It  had  been  incessantly  harassed  by  black- 
mailing lawyers  who  worked  up  damage  cases;  and 
when  it  insured  itself  against  damage  suits  in  indemnity 
companies,  those  companies  made  a  practice,  when  there 
was  a  case  of  injury,  of  fighting  the  claim  in  the  courts 
instead  of  paying  it.  The  net  result  was  a  feeling  of 
chronic  bitterness  among  its  employes.  Under  the  new 
law,  with  the  courts  and  their  methods  eHminated,  the 
employes  have  been  certain  of  compensation,  the  com- 
pany has  known  what  to  provide  against,  and  both  it  and 


132  THE   CASE   OF   THE    PEOPLE   AGAINST 

its  employes  have  known  that  the  money  would  not  ul- 
timately pass  into  the  hands  of  the  lawyers. 

'The  Compensation  Act  authorizes  the  commission 
to  ignore  judicial  practice  both  as  to  procedure  and  evi- 
dence ;  and  by  a  set  of  rules  concerning  character  of  in- 
jury and  for  fixing  compensation,  leaves  the  commission 
to  ascertain  the  facts  in  its  own  way.  Damage  suits  are 
eliminated,  and  certainty  of  compensation  takes  the 
place  of  suffering  and  bitterness  or  interminable  law 
suits  with  the  injured  always  at  a  fighting  disadvantage. 
The  commission  acts  as  judge  and  jury  under  the  ma- 
jority rule.  As  if  to  add  insult  to  the  ousting  of  the 
courts  from  jurisdiction  over  this  whole  class  of  cases, 
the  act  declares  invalid  any  lawyer's  claim  or  agreement 
for  legal  services  in  excess  of  a  reasonable  amount ;  and 
then  leaves  it  to  the  commission  to  decide  what  is  a  rea- 
sonable attorney's  fee  for  legal  service  to  an  injured 
party. 

*Tt  seems  like  an  uneasy  dream,  but  this  is  how  the 
commission  exercises  its  authority.  An  injured  employe 
entered  into  a  contract  agreement  with  a  lawyer  to  give 
him  twenty  per  cent  of  whatever  compensation  he  might 
receive.  The  commission  refused  to  recognize  the  con- 
tract, as  the  law  provides  it  may  do,  and  declared  it  in- 
valid. It  allowed  the  lawyer  twenty  dollars  for  his  ser- 
vices, declared  that  sum  a  liberal  allowance,  and  an- 
nounced its  intention  to  allow  only  ten  or  even  five  dol- 
lars. So  simple  are  the  formalities  by  which  an  employe 
may  secure  compensation  that  the  commission  has  de- 
clared that  there  is  no  necessity  for  a  lawyer  at  all  to 
bring  a  case  before  it ;  and  that  it  will  itself  recommend 
the  employment  of  one  when  that  is  desirable  for  the 
consideration  of  points  of  law.  Is  it  any  wonder  that 
out  of  far  Nebraska  came  the  report  that  when  in  1914 


THE   LAWYERS   AND   THE   COURTS  133 

the  state  sought  to  pass  a  constitutional  amendment  pro- 
viding workmen's  compensation,  lawyers  organized  op- 
position to  it  because  it  would  destroy  a  source  of  their 
income?    See  Acts  19,  24-28. 

"  Tor  a  certain  man  named  Demetrius,  a  silversmith, 
which  made  silver  shrines  for  Diana,  brought  no  small 
gain  to  the  craftsmen ;  whom  he  called  together  with  the 
workmen  of  like  occupation,  and  said,  Sirs,  ye  know 
that  by  this  craft  we  have  our  wealth.  Moreover  ye  see 
and  hear,  that  not  alone  in  Ephesus,  but  almost  through- 
out all  Asia,  this  Paul  hath  persuaded  and  turned  away 
much  people,  saying  that  they  be  no  gods,  which  are 
made  with  hands:  So  that  not  only  this  our  craft  is  in 
danger  to  be  set  at  naught;  but  also  that  the  temple  of 
the  great  goddess  Diana  should  be  despised,  and  her 
magnificence  should  be  destroyed,  whom  all  Asia  and 
the  world  worshippeth.  And  when  they  heard  these  say- 
ings, they  were  full  of  wrath,  and  cried  out,  saying, 
Great  is  Diana  of  the  Ephesians.'  " 

"But,"  said  I,  "the  classes  of  cases  that  have  been 
taken  away  from  the  courts  and  placed  in  the  hands  of 
commissions  with  plenary  powers  can  be  clearly  defined. 
The  utilities  exercise  functions  in  which  all  the  people 
are  interested.  The  industrial  accidents  also  constitute  a 
fairly  distinct  group,  and  doubtless  the  reason  they  are 
specially  provided  for  is  a  social  reason:  sympathy  to- 
ward the  helpless  and  a  desire  to  lend  the  strength  of  the 
community  to  the  weakest.  But  these  reasons  cannot  be 
fairly  applied  to  judicial  problems  in  general,  even  if  it 
were  possible  to  throw  all  cases  into  special  groups  and 
provide  special  arrangements  for  dealing  with  them." 

My  friend  the  Ass  replied :  "Is  there  any  moral,  so- 
cial, political  or  financial  reason  why  the  same  facilities 
of  speed,  economy  and  certainty  that  have  been  so  bril- 


134  THE   CASE   OF   THE   PEOPLE   AGAINST 

liantly  applied  to  public  utilities  and  industrial  accidents 
should  not  be  applied  to  all  other  judicial  problems? 
Now  that  an  eminently  satisfactory  solution  has  been 
found  for  two  classes  of  cases,  does  not  the  responsibil- 
ity rest  on  the  community  to  bring  the  same  measure  of 
relief  to  the  average  citizen  in  civil  cases  and  to  the  com- 
munity as  a  whole  in  criminal  cases? 

"Judicial  procedure  and  the  courts  as  they  stand  now 
are  damned  by  their  own  records.  Time  cuts  no  figure 
in  the  courts.  It  is  almost  a  criminal  waste  of  energy  to 
make  an  exhibit  of  the  time  it  takes  to  get  cases  through 
the  courts,  but  here  is  a  summary  for  two  volumes  of  Su- 
preme Court  Reports  before  the  Appellate  courts  were 
established  and  for  two  volumes  after  they  were  estab- 
lished. Before  the  Appellate  courts  were  organized  it 
took  from  seven  to  nine  months  in  the  superior  courts 
throughout  the  state  to  get  a  case  to  trial  after  the  com- 
plaint was  filed ;  from  a  year  and  four  months  to  two 
years  and  two  months  to  get  a  judgment  in  the  superior 
court;  and  from  three  years  and  seven  months  to 
five  years  and  six  months  from  the  filing  of  complaint 
in  the  superior  court  to  final  decision  in  the  state  Su- 
preme Court.  These  cases  remained  in  the  Supreme 
Court  itself  from  about  a  year  and  a  half  to  nearly  three 
years.  It  should  be  said  that  the  data  are  taken  from 
the  reports  of  the  Commonwealth  Club  of  San  Francisco, 
and  that  the  extremes  represent,  not  individual  cases  but 
groups  of  cases  from  San  Francisco,  Los  Angeles  and 
Alameda  counties  separately  and  from  all  the  other 
counties  in  a  single  group.  And  the  cases  dealt  with  are 
only  those  that  were  sent  up  on  appeal  from  the  superior 
courts. 

"After  the  Appellate  courts  were  organized  it  took 


THE   LAWYERS   AND   THE   COURTS  135 


from  three  years  and  five  months  to  nearly  six  years 
from  the  fiHng  of  the  complaint  to  the  final  decision  in 
the  Supreme  Court.  These  cases  remained  in  the  Su- 
preme Court  itself  from  a  year  and  a  half  to  a  year  and 
nine  months.  The  groups  of  cases  dealt  with  naturally 
are  the  more  important  and  hard- fought  cases. 

"Time  cuts  no  figure  in  the  courts,  but  in  human  life 
it  is  the  great  variable  on  which  the  sum  of  results  al- 
most entirely  depends.  As  for  cost — ^the  cost  of  crim- 
inal cases  to  the  community  itself  is  nothing  short  of 
criminal,  and  in  civil  cases  it  is  so  serious  that  not  infre- 
quently, according  to  the  testimony  of  Judge  Wanama- 
ker  of  the  Ohio  Supreme  Court,  it  is  greater  than  the 
amounts  involved  in  the  suits.  And  as  for  the  interests 
of  the  litigants,  the  following  remark  should  become  a 
classic :  'Pardon  me  for  mentioning  the  litigants.  All 
procedure  eliminates  consideration  of  the  litigants,  but 
sometimes  we  have  to  think  of  them.' 

*'You  expressed  a  doubt  that  any  general  measures  of 
relief  could  be  applied.  Some  insist  that  the  elective 
judges  are  incompetent;  that  they  are  chosen  upon 
every  consideration  except  fitness.  It  is  true  that  many 
judges  are  selected  when  better  men  are  available,  be- 
cause they  happen  to  be  familiar  with  the  trails  to  all  sa- 
loons, or  because  they  are  socially  active  and  keep  them- 
selves prominently  before  the  people  by  devices  that 
would  be  scorned  by  the  best  lawyers.  Experience  in 
England  and  this  country  proves  beyond  question  that 
judges  appointed  by  the  proper  authorities  to  serve  dur- 
ing good  behavior,  thus  relieving  them  of  the  necessity 
to  do  politics  either  to  get  the  appointment  or  to  keep 
the  office  afterwards,  are  far  better  judges  than  those 
who  are  elected.     But  the  experience  of  England  also 


136  THE   CASE   OF   THE   PEOPLE  AGAINST 

shows  that  the  method  of  selecting  the  judges  does  not 
reach  the  root  of  the  evil. 

"There  was  a  time  when  the  English  courts  were  as 
bad  as  the  American  courts  are  now.  Their  methods 
were  ineffective,  slow,  expensive  and  uncertain.  But  the 
judges  were  appointed  then  as  they  are  now.  There  is 
no  material  difference  between  the  laws  of  the  two  coun- 
tries ;  the  courts  of  the  two  nations  deal  with  practically 
the  same  material.  But  in  the  fateful  year  of  1873  the 
English  completed  the  radical  changes  in  their  court  pro- 
cedure. The  English  judge  is  the  master  of  his  court. 
A  competent  American  observer  of  the  English  courts 
has  recorded  the  fact  that  'the  most  important  action  can 
be  tried,  judgment  given,  appeal  taken,  argued  and  oral- 
ly decided  as  counsel  sit  down,  all  in  ninety  days.'  It  is 
cruelty  to  compare  this  with  the  three  and  a  half  to  six 
years  which  a  case  has  to  spend  in  the  courts  of  Cali- 
fornia. The  bare  statement  of  the  fact  makes  it  ludi- 
crous and  incredible.  But  another  phase  of  the  matter 
is  still  more  astonishing.  In  England,  where  no  new 
trials  are  granted  on  technical  grounds  at  all,  'the  court 
of  appeals,  acting  for  32,000,000  people,  grants  only 
about  twelve  new  trials  a  year.  In  contrast  to  this,  in 
one  county  alone  in  the  United  States,  with  a  population 
of  less  than  100,000,  there  were  thirty-eight  appeals  in 
one  year,  of  which  seventeen  were  reversed  for  technical 
errors.' 

'Tt  is  interesting  to  compare  the  delicate,  tentative 
efforts  that  have  been  made  to  secure  simplicity,  speed 
and  certainty  in  the  courts,  with  the  violent  and  bone- 
crushing  methods  involved  in  the  public  utilities  law  of 
California.  Amendments  to  the  state  constitution  have 
been  adopted  in  recent  years  providing  that  a  verdict 


THE   LAWYERS   AND   THE   COURTS  137 

may  be  reached  by  three-fourths  of  the  jury  in  civil 
cases ;  and  that  in  both  civil  and  criminal  cases  a  court 
of  appeal  shall  not  set  a  judgment  aside  or  grant  a  new 
trial  on  account  of  misdirection  of  the  jury  or  violation 
of  the  rules  of  evidence  or  for  errors  as  to  pleadings  or 
procedure  unless  after  examining  the  whole  record,  the 
court  shall  find  that  there  has  been  a  miscarriage  of  jus- 
tice. But  these  are  only  straws;  they  have  greatly  im- 
proved the  morals  of  the  situation,  but  do  not  touch  the 
root  of  the  issue. 

*'At  present  the  judge  cannot  exercise  any  important 
influence  in  the  selection  of  the  jury;  even  the  instruc- 
tions he  gives  to  the  jury  are  largely  muddled  by  the 
partisan  demands  of  the  opposing  sides,  until  as  has  been 
often  said,  even  a  jury  of  lawyers  could  not  themselves 
understand  the  instructions.  The  judge,  the  only  im- 
partial expert  in  the  court,  can  not  analyze  the  evidence 
or  point  out  its  bearings  and  help  the  jury  to  understand 
it ;  but  the  very  worst  and  most  incompetent  shyster  that 
can  get  into  court  with  a  case  has  the  privilege  of  ad- 
vising the  jury  and  befuddling  the  evidence. 

"The  people  themselves  have  already  put  into  action 
the  principles  upon  which  the  changes  will  be  based. 
All  that  is  now  left  to  do  is  to  remove  the  inconsistency 
of  doing  business  in  an  incompetent  way  in  one  part  of 
the  field  and  effectively  in  the  rest  of  the  field.  Not  a 
single  new  or  untried  rule  of  action  need  be  introduced 
in  the  courts  of  California  to  accomplish  the  revolution. 
Would  the  powers  given  to  the  railroad  commissioners 
be  any  more  dangerous  in  the  hands  of  experienced 
judges? 

"Imagine  the  change  that  would  come  over  the 
dreams  of  lawyers  and  litigants  if  a  judge  could  control 
the  presentation  of  evidence,  calling  out  every  fact  that 


138 


THE   CASE   OF   THE    PEOPLE   AGAINST 


may  have  a  bearing  on  the  issue  and  making  the  tech- 
nical rules  subordinate  to  efficiency;  if  he  could  force 
each  side  to  lay  its  proofs  on  the  table  instead  of  allow- 
ing the  lawyers  to  higgle  and  spar  and  play  for  position ; 
if  Hke  a  railroad  commissioner  he  could  even  make  an 
independent  investigation  of  the  facts  without  consider- 
ing the  partisanship  of  either  Htigant;  if  he  had  real 
power  to  exercise  in  the  selection  of  a  jury;  if  when  the 
evidence  is  in,  and  he  gives  instructions  to  the  jury,  he 
could  do  the  thing  that  every  right-minded  juror  would 
appreciate  greatly — make  an  analysis  of  the  evidence^ 
point  out  the  bearings  of  the  law  on  each  phase  of  it, 
point  out  the  indications  of  untrustworthiness ;  and  then 
tell  the  jury  the  final  decision  rests  with  them.  Most  of 
the  trouble  in  the  jury  rooms  is  made  by  men  who  have 
no  really  defensible  positions  of  their  own,  but  resent 
as  partisanship  and  unfair  pressure  the  efforts  of  the 
others ;  and  would  consider  gravely  the  explanations  of 
an  impartial  expert.  What  to  them  seemed  an  all- 
important  matter  would  be  relegated  as  a  mere  detail,, 
and  they  could  readily  join  their  associates  in  a  verdict 
without  any  loss  of  self-respect. 

"If  complete  power  to  deal  with  facts  and  the  details 
of  procedure  were  placed  in  the  hands  of  the  trial  judge 
as  has  already  been  done  to  such  great  advantage  in  the 
case  of  the  railroad  commissioners,  and  appeals  were 
strictly  limited,  the  hounding  and  snarling  and  petty  con- 
duct of  the  trial  courts  would  disappear,  as  it  has  done 
in  the  public  utility  business.  Instead  of  incessant  at- 
tempts to  trip  and  trick  the  court,  respect  for  the  power 
of  the  court  would  work  in  the  direction  of  solid  results. "^ 

The  Burro  rested  from  his  labors  and  I  dropped  into 
the  cafion  to  get  a  drink  at  the  nearest  little  spring. 


THE   LAWYERS   AND   THE   COURTS  -139 


XVIII 
The  Power  of  the  Judge 

WHEN  I  returned  I  said,  "The  same  Judge  Wana- 
maker  whom  you  have  quoted  in  other  things 
charges  a  large  part  of  the  inefficiency  of  the 
courts  against  the  trial  judges  instead  of  the  lawyers, 
because  they  do  not  exercise  all  the  powers  which  the 
laws  and  rules  of  procedure  already  give  them." 

He  answered  me  with  a  question,  "What  would  hap- 
pen if  a  judge  undertook  to  make  himself  master  of  his 
own  court?  In  the  atmosphere  of  uncertainty  produced 
by  the  elaborate  system  of  appeals,  when  a  judge  can- 
not be  sure  that  any  step  he  takes  will  not  be  used  against 
him,  when  he  is  watched  by  both  sides  for  such  open- 
ings, when  he  has  no  ultimate  authority  whatever  con- 
cerning either  the  law  or  the  facts,  and  he  is  constantly 
open  to  attack,  where  will  the  power  of  control  rest? 
With  the  lawyers  who  make  the  trouble.  Just  where  the 
power  is  needed,  where  the  facts,  the  witnesses,  the  liti- 
gants and  the  lawyers  are  handled,  there  the  constant 
pressure  of  latent  threat  has  taken  away  initiative,  which 
always  rests  on  mastery. 

"You  failed  to  touch  the  most  interesting  of  the  Ohio 
judge's  suggestions.  He  declared  that  there  are  alto- 
gether too  many  trials ;  and  that  is  woefully  true.  Just 
now  the  American  people  are  more  interested  in  trying 
to  humanize  justice  than  in  perfecting  their  court  ma- 
chinery. In  various  parts  of  the  country  juvenile  courts, 
courts  of  domestic  relations  and  so  on  have  been  estab- 


140  THE   CASE   OF   THE   PEOPLE   AGAINST 

lished  to  deal  with  special  classes  of  cases,  and  at  the 
root  of  all  these  efforts  lies  the  desire  to  ignore,  to  a 
greater  or  less  extent,  the  old  legal  machinery,  and  give 
great  power  to  the  judge  to  deal  out  a  mixture  of  jus- 
tice, mercy,  good  sense  and  advice.  The  doctrine  of  pro- 
bation before  death  has  been  set  up.  After  the  machin- 
ery of  justice  has  rattled  its  utmost,  the  judge  is  given 
power  to  turn  the  victim  loose  on  trial.  He  takes  a 
promise  instead  of  inflicting  punishment;  it  is  coming 
to  be  more  clearly  reaHzed,  but  as  yet  only  in  isolated 
spots,  that  hand-made  justice  has  a  better  quaUty  than 
anything  made  by  complex  machinery. 

"At  the  root  of  every  lawsuit  there  Hes  hatred,  or 
spite,  or  stubbornnesss,  or  selfishness  or  misunderstand- 
ing— all  of  them  soluble  in  the  aqua  regia  of  common 
sense  and  sympathy.  If  the  trial  judge  were  master  of 
his  position  a  good  many  of  the  cases  that  come  before 
him  need  never  come  to  trial  at  all.  As  matters  stand 
any  preliminary  attempt  on  his  part  to  bring  the  parties 
together  would  endanger  his  position;  he  might  dis- 
quahfy  himself  to  preside  at  the  trial.  With  real  con- 
trol, his  moral  authority  would  in  many  instances  bring 
the  parties  to  a  mutual  understanding  before  the  trial 
starts.  That  would  be  justice,  with  the  great  additional 
satisfaction  that  comes  of  the  consent  of  both  parties. 
And  no  man  can  measure  the  full  meaning  of  such  tri- 
umphs of  the  spirit  in  the  cultivation  of  better  human 
relations. 

"At  present  people  are  at  liberty  to  litter  the  courts 
with  spitework  and  trickery  by  means  of  suits  which 
they  have  no  serious  intention  to  press.  Practically  all 
suits  of  that  nature  could  be  eliminated  entirely  if  the 
plaintiffs  were  forced  to  go  into  court  when  the  suit  is 


THE   LAWYERS   AND   THE   COURTS  141 

filed.  The  innocent  parties  are  made  to  suffer  so  serious- 
ly that  the  result  is  for  them  a  practical  denial  of  justice. 
Not  only  the  judge  whom  you  quoted  but  many  of  the 
ablest  men  in  the  legal  profession  believe  that  in  many 
cases  the  judge  or  jury  should  be  allowed  by  the  law  to 
add  to  the  judgment  a  reasonable  sum  for  attorney's 
fees.  This  would  not  only  put  at  least  a  reasonable  share 
of  the  punishment  on  the  party  responsible  for  the  trou- 
ble, but  what  is  far  more  important,  would  be  a  power- 
ful deterrent  to  those  itching  with  a  desire  to  make 
trouble. 

"After  a  case  has  been  tried  with  all  formality  by  a 
judge  and  jury,  with  the  help  of  the  litigants  and  their 
attorneys,  and  judgment  has  been  handed  down,  why 
should  either  party  to  the  suit  be  allowed  to  decide  for 
himself  whether  the  case  shall  be  appealed?  Here  is  a 
simple  example,  typical  of  thousands.  A  hard  fought 
case  for  the  payment  of  machinery  occupied  the  court 
for  fifteen  days ;  both  sides  presented  every  shred  of 
evidence  available;  the  judge  was  extremely  careful  of 
the  rights  of  both  parties ;  the  jury  took  unusual  interest 
in  the  case,  and  at  the  end,  after  twenty-two  hours  of 
careful  study  of  the  evidence,  brought  in  a  verdict  of 
about  $10,000  for  the  plaintiff.  The  judge  privately  ex- 
pressed the  opinion  that  it  was  a  just  verdict.  The  attor- 
ney for  the  defendants  was  an  able  lawyer  of  long  ex- 
perience, and  when  the  case  was  lost  he  refused  to  carry 
it  to  the  higher  court  on  appeal.  But  the  defendants 
stubbornly  employed  another  lawyer  and  carried  the  case 
up.  A  year  after  judgment  in  the  trial  court  it  had  not 
even  reached  a  hearing  in  the  appellate  court.  Why 
should  any  lawyer  working  for  a  fee  be  allowed  to  de- 
cide the  question  of  appeal  at  all  after  it  has  been  heard 


142  THE  CASE  OF  THE  PEOPLE  AGAINST 

and  determined  in  a  superior  court,  any  more  than  he 
could  do  it  from  the  decision  of  a  railroad  commission- 
er? If  appeals  were  no  longer  allowed  at  all  on  ques- 
tions of  fact  and  procedure,  as  is  the  case  already  in  mat- 
ters under  the  jurisdiction  of  the  railroad  commission, 
or  were  confined  mostly  to  questions  of  law,  why  should 
not  the  right  to  send  the  case  up  be  entrusted  to  the  trial 
judge  himself  for  his  own  information  on  points  of  law, 
or  a  litigant  be  compelled  to  go  before  the  upper  court 
and  make  a  showing  so  that  the  case  may  be  ordered  up 
under  a  writ,  as  is  now  the  practice  in  public  utility 
cases  ? 

"Backward-looking  men  have  raised  a  political  out- 
cry against  the  multiplication  of  commissions.  But  these 
are  devices  for  getting  necessary  work  accompUshed. 
When  the  courts,  with  their  highly  trained  experts,  are 
given  the  power  already  given  to  men  who  never  even 
sat  on  a  judicial  bench,  the  great  problem  of  the  Ameri- 
can courts  will  be  solved.  In  a  court  with  real  power, 
the  trickery  and  cunning  of  the  immoral  lawyer  will  be 
at  a  discount.  Strong  and  capable  men  will  seek  instead 
of  avoiding  judgeships.  Shysters  cannot  live  in  an  in- 
tellectual atmosphere  of  that  kind.  Fewer  lawyers,  and 
those  the  ablest  ones,  would  be  called  upon  to  do  the 
heavy  work  in  the  trial  courts.  With  the  quickening  sen- 
sitiveness of  social  justice  the  judicial  system  looms  up 
more  clearly  than  ever  as  a  spiritless  machine,  that 
moves  and  creaks  along  on  rusty  rails  toward  the  places 
of  the  dead,  whence  living  men  have  long  since  departed. 
The  need  of  a  final  decision  before  the  exhaustion  or 
death  of  the  litigants  is  the  driving  throught.  Watch 
curiously  henceforth  and  see  how  the  power  and  spirit 
of  the  pubHc  utilities  law  of  CaUfornia  will  affect  the 


THE  LAWYERS  AND  THE  COURTS  143 

people's  purpose  concerning  their  courts.     Every  doc- 
trine needed  is  already  embodied  there." 

"The  words  of  the  Desert  Ass  are  ended." 


The  Talking  Jackass  came  closer  to  me  and  rubbed 
his  nose  against  my  shoulder,  the  sign  of  both  friendship 
and  farewell.  He  turned  his  face  up  hill  and  slowly 
climbed  the  mountain,  as  if  all  time  were  his.  I  went 
down  along  the  ridge,  but  did  what  we  all  do  when  a 
friend  is  going  on  a  long  journey.  I  stopped  and  looked 
back  once  more;  he  showed  no  sign  that  he  had  ever 
known  me.  I  stayed  a  long  while  where  I  was,  and  he 
went  farther  and  farther  up.  At  sundown  I  saw  him 
far  up  on  Pinto  Peak ;  and  it  seemed  as  if  he  were  about 
to  disappear  in  the  great  band  of  pale,  softly  glowing 
pink  of  the  mountain  wall  behind  him.  As  the  level  sun- 
beams swung  up  the  mountain,  touching  its  hard  sides 
with  infinite  softness,  I  strained  my  eyes  to  keep  him  in 
sight.  His  outline  slowly  grew  faint  and  fainter.  He 
never  moved,  and  a  doubt  came  whether  I  saw  him  still, 
or  was  it  only  the  persistence  of  his  form  in  my  tired 
eyes?  There  could  be  no  doubt;  he  was  gone.  The 
mountain  turned  cold  and  gray.  I  went  down  to  the 
water,  and  crawled  into  my  sleeping-bag;  but  gazed 
long  at  the  stars  and  wondered  at  the  way  in  which  hu- 
man institutions  change,  while  the  instinctive  human 
wants  remain  so  much  the  same. 


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